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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 26 ● ISSUE 18 ● Pages 1434 - 1475
March 15, 2012
I. EXECUTIVE ORDERS
Executive Order No. 115 .................................................................................... 1434 – 1435
Executive Order No. 116 .................................................................................... 1436 – 1437
II. IN ADDITION
Decision Letters on "Changes Affecting Voting" from US Attorney General ... 1438 – 1439
III. PROPOSED RULES
Commerce, Department of
Federal Tax Reform Allocation Committee .................................................... 1440 – 1441
Environment and Natural Resources, Department of
Department ...................................................................................................... 1446 – 1448
Public Health, Commission for ....................................................................... 1448 – 1464
Insurance, Department of
Commissioner of Insurance............................................................................. 1441 – 1446
Occupational Licensing Boards and Commissions
Funeral Service, Board of ............................................................................... 1468 – 1469
Medical Board ................................................................................................. 1464 – 1468
IV. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1470 – 1475
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 431-3000
Fax (919) 431-3104
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Vojtko, Publications Coordinator
Julie Edwards, Editorial Assistant
Tammara Chalmers, Editorial Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Amy Bason amy.bason@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2012 – December 2012
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
26:13 01/03/12 12/08/11 01/18/12 03/05/12 03/20/12 05/01/12 05/16/12 09/29/12
26:14 01/17/12 12/21/11 02/01/12 03/19/12 03/20/12 05/01/12 05/16/12 10/13/12
26:15 02/01/12 01/10/12 02/16/12 04/02/12 04/20/12 06/01/12 01/30/13 10/28/12
26:16 02/15/12 01/25/12 03/01/12 04/16/12 04/20/12 06/01/12 01/30/13 11/11/12
26:17 03/01/12 02/09/12 03/16/12 04/30/12 05/21/12 07/01/12 01/30/13 11/26/12
26:18 03/15/12 02/23/12 03/30/12 05/14/12 05/21/12 07/01/12 01/30/13 12/10/12
26:19 04/02/12 03/12/12 04/17/12 06/01/12 06/20/12 08/01/12 01/30/13 12/28/12
26:20 04/16/12 03/23/12 05/01/12 06/15/12 06/20/12 08/01/12 01/30/13 01/11/13
26:21 05/01/12 04/10/12 05/16/12 07/02/12 07/20/12 09/01/12 01/30/13 01/26/13
26:22 05/15/12 04/24/12 05/30/12 07/16/12 07/20/12 09/01/12 01/30/13 02/09/13
26:23 06/01/12 05/10/12 06/16/12 07/31/12 08/20/12 10/01/12 01/30/13 02/26/13
26:24 06/15/12 05/24/12 06/30/12 08/14/12 08/20/12 10/01/12 01/30/13 03/12/13
27:01 07/02/12 06/11/12 07/17/12 08/31/12 09/20/12 11/01/12 01/30/13 03/29/13
27:02 07/16/12 06/22/12 07/31/12 09/14/12 09/20/12 11/01/12 01/30/13 04/12/13
27:03 08/01/12 07/11/12 08/16/12 10/01/12 10/22/12 12/01/12 01/30/13 04/28/13
27:04 08/15/12 07/25/12 08/30/12 10/15/12 10/22/12 12/01/12 01/30/13 05/12/13
27:05 09/04/12 08/13/12 09/19/12 11/05/12 11/20/12 01/01/13 01/30/13 06/01/13
27:06 09/17/12 08/24/12 10/02/12 11/16/12 11/20/12 01/01/13 01/30/13 06/14/13
27:07 10/01/12 09/10/12 10/16/12 11/30/12 12/20/12 02/01/13 05/2014 06/28/13
27:08 10/15/12 09/24/12 10/30/12 12/14/12 12/20/12 02/01/13 05/2014 07/12/13
27:09 11/01/12 10/11/12 11/16/12 12/31/12 01/22/13 03/01/13 05/2014 07/29/13
27:10 11/15/12 10/24/12 11/30/12 01/14/13 01/22/13 03/01/13 05/2014 08/12/13
27:11 12/03/12 11/07/12 12/18/12 02/01/13 02/20/13 04/01/13 05/2014 08/30/13
27:12 12/17/12 11/26/12 01/01/13 02/15/13 02/20/13 04/01/13 05/2014 09/13/13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
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EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1435
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1436
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1437
IN ADDITION
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1438
IN ADDITION
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1439
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1440
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 04 – DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Federal Tax Reform Allocation Committee (TRAC) intends
to adopt the rule citied as 04 NCAC 01H .0501.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.nccommerce.com/energy/recovery-information
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: March 30, 2012
Time: 10:00-11:00 a.m.
Location: Department of Commerce, Fourth Floor Board
Room, 301 N. Wilmington Street, Raleigh, NC 27601
Reason for Proposed Action: In 2008, the U.S. Congress
authorized Qualified Energy Conservation Bonds (QECBs) to
finance a wide range of energy conservation measures,
including construction, and allowed a maximum nationwide
volume cap of $800 million. In February of 2009, through the
American Recovery and Reinvestment Act (ARRA), Congress
increased the cap to $3.2 billion, which was then to be allocated
to each state based on population. The total allocation for
North Carolina is $95,677,000 in QECB issuing authority. The
TRAC has temporary rules in place that allow the TRAC to
allocate QECB capacity to eligible issuers within the State to
that North Carolina's QECB capacity can be fully utilized.
However, these temporary rules are due to expire on June 30,
2012. Therefore, it is essential that the TRAC have permanent
rules in place so that the TRAC can continue to allocate the
QECB capacity without interruption.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing is being held where interested
persons can object to the proposed rule. Interested persons may
also object through written comment to the agency.
Comments may be submitted to: Mark Poole, Commerce
Finance Center, 4301 Mail Service Center, Raleigh, NC 27699-
4301, phone (919)733-4151
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM: 02/13/12
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01H - PRIVATE ACTIVITY BOND
VOLUME CAPACITY PROGRAM
SECTION .0500 - QUALIFIED ENERGY
CONSERVATION BONDS
04 NCAC 01H .0501 PROCEDURES AND CRITERIA
FOR ALLOCATION OF QUALIFIED ENERGY
CONSERVATION BONDS
(a) The North Carolina Tax Reform Allocation Committee (the
"Committee") shall allocate Qualified Energy Conservation
Bond ("QECB") capacity to entities eligible to issue the bonds
under 26 U.S.C.S. 54D as follows:
(1) To "large local governments," as the term is
used in 26 U.S.C.S. 54D(e)(2) in the amounts
and manner as directed by the United States
Internal Revenue Service ("IRS") in 26
U.S.C.S. 54D and all relevant implementing
notices provided by the IRS (including IRS
Notice 2009-29), as modified, amended or
supplemented. For purposes of calculating the
populations of local governments to determine
which constitutes a "large local government,"
the Committee shall use population estimates
as of July 1, 2007, as directed by the IRS.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1441
(2) To "Indian tribal governments," as the term is
used in 26 U.S.C.S. 54D(h) in the amounts as
directed by the IRS in 26 U.S.C.S. 54D and
relevant implementing notices provided by the
IRS (including IRS Notice 2009-29), as
modified, amended or supplemented.
(b) Following the allocations described in Paragraph (a) of this
Rule, the Committee shall allocate the remaining QECB capacity
to other issuers. The allocation shall be made by the Committee
upon completed application by an issuer, and after consideration
of the following factors:
(1) The ability of the State to ensure that at least
70 percent of the State's allocation is used for
government projects, and no more than 30
percent for projects considered QECB private
activity bonds under IRS rules, regulations and
guidelines;
(2) The extent to which the project constitutes an
eligible conservation purpose under 26
U.S.C.S. 54D and all relevant implementing
notices provided by the IRS (including IRS
Notice 2009-29), as may be modified,
amended or supplemented;
(3) The extent to which the project demonstrates
the potential to directly conserve energy;
(4) The extent to which the project supports the
development or implementation of innovative
energy conservation technology;
(5) The extent to which the project uses renewable
resources to produce energy;
(6) The number of citizens benefiting from the
project;
(7) The estimated number of jobs to be produced
by the projects (for private activity allocations)
and the amount of QECB authority per job
produced;
(8) The readiness of the project to proceed;
(9) The certainty of the issuer using the allocation
within the estimated timelines;
(10) The amount of other public and private
funding leveraged by the QECB allocation;
(11) The amount of local community support for
the project;
(12) The best interests of the State of North
Carolina with regard to economic
development, energy conservation, green
initiatives and the general prosperity of the
State;
(13) Whether the unit of local government is in
competition with another state for project
benefits such as jobs and tax base;
(14) Whether the availability of the allocation is a
crucial part of attracting a new company or
keeping an existing company in place;
(15) Whether the requested allocation will benefit a
project for which an eligible issuer is already
issuing QECBs;
(16) The ability of the unit of local government or
company benefiting from the QECB to obtain
financing and close the issue in a timely
manner, including demonstration of a
commitment from a bank or other financial
institution to purchase or underwrite the
QECBs;
(17) The total amount of capacity available to the
Committee for allocation in relation to the
total number of pending requests for
allocation;
(18) The tier status of the county in which the
project is to be located, as defined in G.S.
143B-437.08; and
(19) The geographic location of the project in light
of the location of other projects benefitting
from QECB capacity.
(c) If so required by G.S. Chapter 159 or G.S. 160A-20, local
governments shall coordinate issuance of QECBs with and
through the North Carolina Local Government Commission (the
"LGC") in the Office of the North Carolina State Treasurer and
shall obtain approval from the LGC for QECB issuance.
(d) Entities allocated QECB capacity by the Committee and
entities who issue QECBs shall ensure compliance with all
federal and state laws, rules, regulations and requirements
applicable to the allocation or issue.
(e) Entities receiving an allocation under Subparagraph (a)(1) of
this Rule ("large local governments" and "Indian tribal
governments") may waive or reallocate to the State of North
Carolina all or a portion of their allocation. Upon the State's
receipt of any additional QECB capacity through any waiver or
reallocation, the Committee shall allocate the capacity to eligible
issuers in the manner described in Subparagraph (a)(2) this Rule.
(f) To ensure timely use of any QECB allocation, the
Committee shall attach to an allocation of capacity made under
Paragraph (b) of this Rule contingencies relating to a time
deadline for issuance of the QECBs pursuant to the allocated
capacity and contingencies limiting the use of the allocated
QECB capacity for public or private activity bonds.
Authority G.S. 143-433.6(d); 143-433.8; 143-433.9(a); 150B-
21.1B; S.L. 2009-140; S.L. 2009-475.
TITLE 11 – DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commissioner of Insurance intends to amend the rules cited
as 11 NCAC 04 .0116, .0313, .0319, .0417, .0430, .0432; and
repeal the rules cited as 11 NCAC 01 .0603; 06A .0806; 10
.0714; 12 .0325, .0545, .0560, .1306; 14 .0413-.0414, .0418-
.0426, .0432, .0501.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.ncdoi.com/LS/
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: April 13, 2012
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1442
Time: 10:00 a.m.
Location: 430 N. Salisbury Street, 3rd Floor Hearing Room,
Raleigh, NC 27603
Reason for Proposed Action:
11 NCAC 04 .0116 – This Rule is being amended to update the
current mailing address and phone numbers for the NC
Department of Insurance, Consumer Services Division.
11 NCAC 04 .0313 – To delete Item (1) House Confinement
because it is in direct conflict with 11 NCAC 12 .0313. To delete
Item (2) because it is superseded by G.S. 58-51-130(h).
11 NCAC 04 .0319 – This Rule is being amended to bring
current as per G.S. 58-3-225.
11 NCAC 04 .0417 – To update the language to allow for an
additional option.
11 NCAC 04 .0430 – To update the methods for proof of mailing
certificates.
11 NCAC 04 .0432 – To update and to be consistent with 11
NCAC 19 .0102 (Market Regulations Division) which requires
companies to maintain records for five years.
11 NCAC 01 .0603; 06A .0806; 10 .0714; 12 .0325, .0545,
.0560, .1306; 14 .0413-.0414, .0418-.0426, .0432, .0501 – These
rules are no longer necessary and are redundant as per the
requirement in 150B-19.1(b).
Procedure by which a person can object to the agency on a
proposed rule: The Department of Insurance will accept
written objections to these rules until the expiration of the
comment period on May 14, 2012.
Comments may be submitted to: Karen Waddell, 1201 Mail
Service Center, Raleigh, NC 27699-1201; phone (919) 733-
4529; email karen.waddell@ncdoi.gov
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SECTION .0600 - GENERAL DEPARTMENTAL
POLICIES
11 NCAC 01 .0603 FACSIMILE
COUNTERSIGNATURE NOT VALID
If a countersignature of an insurance policy is required pursuant
to G.S. 58-33-60, the use by an agent of a facsimile signature for
countersignature shall not constitute a legal signature and such
facsimile countersignature is not valid.
Authority G.S. 58-2-40; 58-33-30(i); 58-33-60.
CHAPTER 04 - CONSUMER SERVICES DIVISION
SECTION .0100 - GENERAL PROVISIONS
11 NCAC 04 .0116 INQUIRIES AND
INFORMATION
The Division maintains facilities and personnel to receive
inquiries and complaints by telephone, letter or personal visit.
The telephone numbers for the Division are toll-free 1-800-662-
7777 or 1-800-546-5664 and 1-919-807-6750. number of the
Division is (919) 733-2032. The mailing address of the Division
is: North Carolina Department of Insurance, Post Office Box
26387, 1201 Mail Service Center, Raleigh, North Carolina
27611, 27699-1201; (Attention: Consumer Services Division).
The street address of the Division is: Room 3040, Dobbs
Building, 430 North Salisbury Street, Raleigh, North Carolina.
Authority G.S. 58-2-25; 58-2-40.
SECTION .0300 - LIFE: ACCIDENT AND HEALTH
11 NCAC 04 .0313 PROVISIONS OF CONTRACTS
In order to prevent unfair discrimination among insureds, the
following phrases and provisions commonly found in life,
accident, health and disability contracts, if not expressly defined
in such contracts, shall be construed by the Department in the
following manner:
(1) House Confinement. As used in disability
contracts, "house confinement" shall be
considered a description of the extent of illness
rather than a restriction of the insured's
conduct or activities. The insured's
participation in activities which are considered
by his physician to be for therapeutic rather
than for business or personal reasons shall not
prevent recovery under such disability
contracts.
(2) Offsets Against Social Security Awards. As
used in disability contracts, "offsets against
social security awards" shall be construed as
permitting the insurer to offset only the
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1443
amount of the original social security award
and not subsequent cost of living increases.
(3)(1) Regular Care and Attendance of a Physician.
As used in life, accident and health and
disability policies, "regular care and
attendance of a physician" shall not be
construed to require insureds to see or be
under the care of a physician on a regular basis
if it can be shown that the insured has reached
his maximum point of recovery yet is still
disabled under the terms of the insurance
contract. This requirement shall not, however,
restrict the right of the insurer at its own
expense, to periodically examine or cause to
have examined the insured according to the
terms of the contract of insurance.
(4)(2) Premature Baby. A premature baby shall not
be considered a well baby. The protection
afforded newborn infants under G.S. 58-51-30
shall be provided to premature babies.
(5)(3) Medical Necessity. "Medical necessity" shall
be construed as including treatment which
restores not only the insured's physical but also
his mental well-being. As used in this Section,
"restoration of mental well-being" does not
require coverage of psychiatric disorders when
such disorders are excluded under the express
terms of the contract.
(6)(4) Sound Health. The question, "Are you in
sound health?" shall be considered ambiguous,
and therefore answers to that question on an
insurance application shall not be used as the
basis for rescission of a policy or denial of a
claim.
Authority G.S. 58-2-40; 58-3-150; 58-51-1; 58-51-130; 58-63-
15; 58-63-65; 58-65-1; 58-65-40; 58-65-95; 58-67-65; 58-67-
150.
11 NCAC 04 .0319 CLAIMS PRACTICES: LIFE:
ACCIDENT AND HEALTH INSURANCE
The Commissioner shall consider as prima facie violative of
G.S. 58-63-15(11) the failure by an insurer to adhere to the
following procedures concerning settlement of life, accident,
health and disability claims when such failure is so frequent as to
indicate a general business practice:
(1) Examining Physician's Opinion. When the
patient's health is in question, an insurer
should give greater weight to the opinion of a
physician who has examined the patient than
to the opinion of a physician who has not
examined the patient and whose opinion is
based solely on a review of the examining
physician's notes or reports. As used in this
Section, "examination of the patient" shall
include the interpretation by a specialist of the
results of diagnostic tests performed on the
patient by others.
(2) Settlement Offers. Initial offers of settlement
or compromise made by an insurer or its
representative shall remain open for a
reasonable period of time.
(3) Multiple Health Impairments. When an
insured is confined to the hospital with
multiple health impairments some of which
may be excluded from coverage, the insurer or
its representative shall make pro rata payments
where treatment for excluded conditions can
be separated.
(4) Assignment of Benefits. If an accident, health
or disability contract does not prohibit
assignment of benefits and a proper
assignment (including notice to the insurer
prior to the payment of the claim) is made, the
insurer shall honor the assignment even though
it may have erroneously paid the insured.
Submission of a completed claims form G33H
and its successor(s) indicating that an
assignment is on file shall be treated as though
it were submission of the actual assignment.
(5) Claim Status Reports. Health insurance claims
subject to G.S. 58-3-225 shall be processed in
accordance with the provisions of the statute.
If benefits claimed under an accident, health,
or disability contract have not been paid within
45 days after receipt of the initial claim by the
insurer, the insurer shall at that time mail a
claim status report to the insured.
Authority G.S. 58-2-40; 58-3-225; 58-63-15; 58-63-65; 58-65-1;
58-65-40; 58-65-125; 58-67-65; 58-67-150.
SECTION .0400 - PROPERTY AND LIABILITY
11 NCAC 04 .0417 DRIVE-IN CLAIM SERVICE
FACILITIES
No insurer shall require any claimant to use a drive-in claim
service operated by the insurer. The claimant's voluntary
utilization of a drive-in claim service or preferred repair shop
shall not prejudice the right of either party to obtain independent
appraisals and negotiate settlement on the basis of such
appraisals.
Authority G.S. 58-2-40; 58-63-65.
11 NCAC 04 .0430 PROOF OF MAILING;
AUTOMOBILE INSURANCE
As used in G.S. 58-36-85, "proof of mailing" means a certificate
issued by and bearing the date stamp of the United States Postal
Service. Service or an official United States Postal Service
tracking number or similar proof of mailing.
Authority G.S. 58-2-40; 58-36-85.
11 NCAC 04 .0432 REFUND OF EXCESS PREMIUM
ON SCHEDULED ITEMS
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
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If an insured has any scheduled item covered by a homeowner's
or personal inland marine insurance policy, and that item is
replaced for less than the scheduled amount of coverage, the
insurer shall refund the insured the difference in premium
charged between the scheduled amount of coverage and the
actual amount of the loss paid by the insurer, if the refund per
policy term is greater than five dollars ($5.00). Any refund shall
be computed from the date of issuance of the policy or three five
y ears, whichever is less.
Authority G.S. 58-2-40; 58-43-10; 58-63-65.
CHAPTER 06 - AGENT SERVICES DIVISION
SUBCHAPTER 06A - AGENT SERVICES DIVISION
SECTION .0800 - CONTINUING EDUCATION
11 NCAC 06A .0806 ATTENDANCE
(a) If six or fewer ICECs are assigned to a course, the licensee
shall attend 100 percent of the course to receive any ICECs.
(b) If more than six ICECs are assigned to a course, and the
licensee passes the exam and attends at least 80 percent of the
course, the licensee shall receive 100 percent of the ICECs
assigned to the course.
(c) If more than six ICECs are assigned to a course, and the
licensee does not pass the exam but attends at least 80 percent of
the course, the licensee shall receive 80 percent of the ICECs
assigned to the course.
(d) An instructor may conduct a class with up to 30 students
with no additional assistance. For classes with attendance
exceeding 30 students, one assistant to the instructor is required
for each additional 50 students or any portion thereof. Each
assistant shall be physically present in the classroom during the
instructor's presentation.
Authority G.S. 58-2-40; 58-33-130.
CHAPTER 10 - PROPERTY AND CASUALTY DIVISION
SECTION .0700 - INSURANCE IN UNLICENSED
FOREIGN AND ALIEN COMPANIES
11 NCAC 10 .0714 FORM:
INSTRUCTIONS/REQUIREMENTS/SURPLUS LINES
COMPANY
The "Instructions and Requirements for Obtaining a License to
Represent a Surplus Lines Company and the Procedure to be
Used for Placing Business" form is an information sheet setting
forth requirements for obtaining an agent's license and obtaining
approval for placing insurance in surplus lines insurers; which is
sent by this department to applicants upon request and includes a
description of the procedures for placing insurance in surplus
lines companies and other information.
Authority G.S. 58-2-40; 58-21-65.
CHAPTER 12 - LIFE AND HEALTH DIVISION
SECTION .0300 - GENERAL PROVISIONS
11 NCAC 12 .0325 OCCUPATIONAL INJURIES OR
DISEASES
Health insurance policies may not exclude coverage for work-related
injuries or sickness unless benefits are paid or payable
for such injuries or sickness under Chapter 97 of the General
Statutes of North Carolina.
Authority G.S. 58-2-40; 58-3-150; 58-51-1; 58-51-85; 58-51-95.
SECTION .0500 - ACCIDENT AND HEALTH: GENERAL
NATURE
11 NCAC 12 .0545 OFFSET OF INCREASED
SOCIAL SECURITY: GROUP DISABILITY
No policy of group disability income insurance which integrates
benefits shall provide that the amount of any disability benefit
actually paid to the disabled person shall be reduced by changes
in the level of social security benefits resulting either from
changes in the social security law or in cost of living adjustments
which become effective after the first day for which the
disability benefits become payable.
Authority G.S. 58-2-40; 58-51-1; 58-65-1; 58-65-40.
11 NCAC 12 .0560 UNIFORM CLAIM FORMS
(a) As used in this Rule, "health benefit plan" has the same
meaning as in G.S. 58-3-171(c).
(b) On and after January 1, 1994, all claims submitted by
institutional health care providers to health benefit plans shall be
submitted on the HCFA 1450 (UB 92), or a substantively
similar, claim form. On and after January 1, 1994, all claims
submitted by noninstitutional health care providers to health
benefit plans shall be submitted on the HCFA 1500, or a
substantively similar, claim form.
Authority G.S. 58-2-40; 58-3-171.
SECTION .1300 - SMALL EMPLOYER GROUP HEALTH
COVERAGE
11 NCAC 12 .1306 REINSURANCE POOL
(a) Reinsurance is available for coverage of eligible employees,
their dependents, or the entire small employer group under any
health benefit plan issued as new business by a reinsuring carrier
to an eligible small employer on and after August 14, 1992.
Reinsurance is also available to eligible small employers who
were refused coverage between January 1, 1992 and August 13,
1992, and were subsequently issued a statutory plan.
(b) Subject to any other restrictions of this Section, a reinsuring
carrier may reinsure an eligible employee, an eligible employee's
dependent, or a small employer group who has insurance
coverage under any health benefit plan subject to the Act.
(c) No carrier or producer shall disclose to insureds that their
coverage is reinsured by the Pool.
(d) A reinsuring carrier shall apply for reinsurance within 60
days after the effective date of coverage. A reinsuring carrier's
decision to reinsure a risk shall be based on the review of
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1445
underwriting taken at the time of application. The decision may
not be based on the small employer group's claims that have
accrued since the effective date of coverage.
(e) Reinsurance coverage may remain in effect, in the reinsuring
carrier's and the Pool's discretion, as long as the reinsured
coverage remains in effect. When the reinsured coverage
terminates, reinsurance will be terminated.
(f) A reinsuring carrier may terminate reinsurance on an
individual or a group without terminating the reinsured
coverage; and that reinsuring carrier shall not thereafter apply
for reinsurance for the person or persons covered.
(g) A reinsuring carrier may reinsure a previously-declined
individual upon enrollment in a health benefit plan or within 60
days after that enrollment, subject to any restrictions of this
Section.
(h) Any reinsuring carrier whose health benefit plan also covers
extra eligibles may not reinsure the coverage of those extra
eligibles.
(i) Any new entrant in a health benefit plan may be reinsured on
the effective date of his or her coverage but no later than 60 days
after that date, subject to any other restrictions of this Section.
Authority G.S. 58-2-40(1); 58-50-130(b)(4); 58-50-150(a); 58-
50-150(f)(5); 58-50-150(g).
CHAPTER 14 - ADMISSION REQUIREMENTS
SECTION .0400 - DESCRIPTION OF FORMS
11 NCAC 14 .0413 ADMISSION DATA
GUIDELINES
The Admission Data Guidelines is a packet of information
provided to insurance companies proposing to make an
application for an initial license to transact insurance business in
North Carolina. The form contains basic admission
requirements and procedures for initiating an application for
admission.
Authority G.S. 58-16-5.
11 NCAC 14 .0414 CHECK SHEET AND ANALYSIS
OF APPLICATION FOR ADMISSION
The Check Sheet and Analysis of Application for Admission is a
form used in the application process for listing the items to be
submitted by an applicant insurance company for review. The
form includes the applicant company name and address, all
items to be submitted and other pertinent information.
Authority G.S. 58-6-5; 58-7-45; 58-7-75; 58-7-80.
11 NCAC 14 .0418 STANDARD QUESTIONS FOR
APPLICANT INSURANCE CO.
The Standard Questions for Applicant Insurance Companies is a
form used to obtain basic information on the current operations
of an applicant insurance company by asking a series of general
questions.
Authority G.S. 58-16-5.
11 NCAC 14 .0419 MARKETING QUESTIONS FOR
APPLICANT LIFE INSURANCE CO.
The Marketing Questions for Applicant Life Insurance
Companies is a form used to obtain specific information on the
marketing aspects of an applicant life insurance company by
asking a series of questions pertaining to its proposed operations
in North Carolina.
Authority G.S. 58-16-5.
11 NCAC 14 .0420 MARKETING QUESTIONS FOR
APPLICANT FIRE/CASUALTY INSURANCE CO.
The Marketing Questions for Applicant Fire and Casualty
Insurance Companies is a form used to obtain specific
information on the marketing aspects of an applicant fire and
casualty insurance company by asking a series of questions
pertaining to its proposed operations in North Carolina.
Authority G.S. 58-16-5.
11 NCAC 14 .0421 UNCONDITIONAL GUARANTY
The Unconditional Guaranty is a form used by an applicant
insurance company, that does not satisfy the successful
operations admission requirement, to request a waiver of that
requirement by having a qualified affiliate guarantee to maintain
the capital and surplus of the applicant company at or above the
admission requirements of North Carolina for at least three
years. This form is a legal document committing the affiliate to
carry out such a guarantee.
Authority G.S. 58-16-5(2).
11 NCAC 14 .0422 CORPORATE RESOLUTION OF
GUARANTOR
The Corporate Resolution of Guarantor is a form used by an
applicant insurance company setting forth the required resolution
by the board of directors of a qualified affiliate to guarantee to
maintain the capital and surplus of the applicant company at or
above the admission requirements of North Carolina when a
waiver of the successful operations admission requirement is
requested.
Authority G.S. 58-16-5(2).
11 NCAC 14 .0423 ELIGIBILITY REQUIREMENTS
FOR SURPLUS LINES INSURANCE CO.
The Eligibility Requirements for Surplus Lines Insurance
Companies is a form provided to insurance companies proposing
to become eligible for the writing of surplus lines insurance in
North Carolina. The form contains the basic requirements for
such eligibility.
Authority G.S. 58-21-20.
11 NCAC 14 .0424 FILING REQUIREMENTS FOR
SURPLUS LINES INSURANCE CO.
The Filing Requirements for Surplus Lines Insurance Companies
is a form provided to insurance companies proposing to become
eligible for the writing of surplus lines insurance in North
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1446
Carolina. The form contains the materials to be filed for review
to determine eligibility.
Authority G.S. 58-21-20.
11 NCAC 14 .0425 BULLETIN 87-L-7
Bulletin 87-L-7 contains general requirements for purchasing
groups seeking to operate in North Carolina under the federal
(15 U.S.C. § 3901 et seq.) and North Carolina (G.S. 58-22-1 et
seq.) risk retention laws.
Authority G.S. 58-22-45(a).
11 NCAC 14 .0426 BULLETIN 87-L-6
Bulletin 87-L-6 contains policy form and rate filing
requirements for purchasing groups procuring insurance under
the federal and North Carolina risk retention laws from property
and casualty companies licensed in North Carolina.
Authority G.S. 58-40-30; 58-41-50.
11 NCAC 14 .0432 APPLICATION FOR LICENSE:
INSURANCE COMPANY
The application for license is a form used by an insurance
company to request authority to transact specific lines of
insurance business in North Carolina. This form is used for
initial authority by each applicant insurance company and for an
annual renewal license by each licensed insurance company.
The form includes the company's name, company's address,
president and secretary of the company, a schedule of license
fees, and the lines of authority being requested.
Authority G.S. 58-2-40; 58-7-40; 58-16-5.
SECTION .0500 - ADMISSION OF A FOREIGN OR
ALIEN INSURANCE COMPANY
11 NCAC 14 .0501 APPLICATION FORMS
In addition to any information required pursuant to G.S. 58-16-5,
a foreign insurance company applying for admission to do
business in North Carolina shall execute and submit to the
Commissioner as appropriate the forms described in 11 NCAC
14 .0409 through .0422. The Commissioner shall accept
applications for admission that are filed pursuant to the uniform
certificate of authority application process designed and made
available by the National Association of Insurance
Commissioners.
Authority G.S. 58-2-40; 58-16-5.
TITLE 15A– DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Environment and Natural Resources intends
to repeal the rules cited as 15 NCAC 01A .0101-.0103; 01B
.0101, .0201-.0204, .0301-.0303, .0401-.0402; 01G .0201-.0207,
.0301-.0305; 01J .1201, .1301-.1303, .1401-.1402, .1501, .1601-
.1602, .1701, .1801, .1901-.1902, .2001-.2003, .2101, .2201;
01K .0101-.0103, .0201-.0202, .0301-.0305, .0401-.0404.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://portal.ncdenr.org/web/guest/rules
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: April 3, 2012
Time: 6:00 p.m.
Location: NC DENR, Green Square Building, Training Room
#1210, 217 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
15A NCAC 01A– Contact information is located in other
directories and websites
15A NCAC 01B .0100 & .0200 – Duplicative of Administrative
Procedures Act
15A NCAC 01B .0300 – Duplicative of North Carolina
Department of Administration requirements
15A NCAC 01B .0400 – Duplicative of statutory requirements
15A NCAC 01G .0200 & .0300 – Program concluded
15A NCAC 01J – Establish consistency within the Water
Infrastructure Fund accounts
15A NCAC 01K – Program concluded
Procedure by which a person can object to the agency on a
proposed rule: If you have any objections to the proposed
rules, please mail a letter with your specific reasons to: Mary
Penny Thompson, General Counsel & Assistant Secretary,
Secretary's Office, 1601 Mail Service Center, Raleigh, NC
27699-1601
Comments may be submitted to: Mary Penny Thompson,
1601 Mail Service Center, Raleigh, NC 27699-1601
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1447
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
Note: The Codifier of Rules has determined that publication of
the complete text of these rules proposed to be repealed is
impractical (G.S. 150B-17(b)).
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01A - GENERAL ORGANIZATION
SECTION .0100 - GENERAL
15A NCAC 01A .0101 DEPARTMENT HEAD
15A NCAC 01A .0102 HOW TO CONTACT THE
DEPARTMENT
15A NCAC 01A .0103 COUNCILS AND COMMITTEES
Authority G.S. 143A-11; 143B-279.1.
SUBCHAPTER 01B - GENERAL ADMINISTRATION
SECTION .0100 - RULEMAKING
15A NCAC 01B .0101 MODEL RULES
Authority G.S. 143B-10(j); 150B-11; 150B-14(c).
SECTION .0200 - CONTESTED CASE HEARING
PROCEDURES
15A NCAC 01B .0201 DEFINITIONS
15A NCAC 01B .0202 AVAILABILITY OF
CONTESTED CASE HEARING
15A NCAC 01B .0203 REQUEST FOR CONTESTED
CASE HEARING
15A NCAC 01B .0204 FINAL AGENCY DECISION IN
CONTESTED CASE PROCEEDINGS
Authority G.S. 143B-10; 150B-2(2); 150B-11; 150B-23(a);
150B-36.
SECTION .0300 - PURCHASING AND CONTRACTING
15A NCAC 01B .0301 SCOPE OF SECTION
15A NCAC 01B .0302 DEFINITIONS
Authority G.S. 143B-10.
15A NCAC 01B .0303 CONCESSION CONTRACTS
Authority G.S. 143B-10; 143-49(2),(3),(4); 143-53; 143B-276.
SECTION .0400 - PUBLIC RECORDS
15A NCAC 01B .0401 DEFINITIONS
15A NCAC 01B .0402 PUBLIC ACCESS
Authority G.S. 132-1; 132-1.1; 132-2; 132-6; 132-9; 143B-10(j);
150B-11.
SUBCHAPTER 01G - RESOLUTION OF SUBMERGED
LANDS CLAIMS
SECTION .0200 - RESOLUTION PROCEDURES
15A NCAC 01G .0201 APPLICATION OF
RESOLUTION PROCEDURE
15A NCAC 01G .0202 INITIAL REVIEW OF CLAIM
15A NCAC 01G .0203 LETTER OF NOTIFICATION
15A NCAC 01G .0204 RESPONSE TO LETTER OF
NOTIFICATION
15A NCAC 01G .0205 FOLLOW-UP TO UNSERVED
NOTIFICATION
15A NCAC 01G .0206 CLAIMS DEEMED COMPLETE
15A NCAC 01G .0207 CLAIM DETERMINATION
Authority G.S. 113-205; 113-206(f); 143B-10(a).
SECTION .0300 - STATE POLICIES
15A NCAC 01G .0301 INTRODUCTION
15A NCAC 01G .0302 FILLED LANDS
15A NCAC 01G .0303 PRIVATELY OWNED BEDS
15A NCAC 01G .0304 MARSHLANDS AND
SWAMPLANDS
15A NCAC 01G .0305 LIMITED RIGHTS
Authority G.S. 1-35; 113-205; 113-206(f); 143B-10(a); 146-6;
146-20.1.
SUBCHAPTER 01J - STATE CLEAN WATER
REVOLVING LOAN AND GRANT PROGRAM
SECTION .1200 - SEVERABILITY
15A NCAC 01J .1201 SEVERABILITY
Authority G.S. 159G-15.
SECTION .1300 - FAILED LOW-PRESSURE PIPE
SYSTEMS
15A NCAC 01J .1301 REVIEW PERIOD
15A NCAC 01J .1302 GRANT ELIGIBILITY
15A NCAC 01J .1303 DISTRIBUTION OF FUNDS
Authority G.S. 159G-10(a1).
SECTION .1400 - GENERAL PROVISIONS
15A NCAC 01J .1401 PURPOSE
15A NCAC 01J .1402 DEFINITIONS
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1448
Authority G.S. 159G-44.
SECTION .1500 - ELIGIBILITY REQUIREMENTS
15A NCAC 01J .1501 ELIGIBLE PROJECT COSTS
Authority G.S. 159G-44.
SECTION .1600 - APPLICATIONS
15A NCAC 01J .1601 APPLICATION FILING
DEADLINES
15A NCAC 01J .1602 GENERAL PROVISIONS
Authority G.S. 159G-44.
SECTION .1700 – COMMON CRITERIA FOR
EVALUATION OF ELIGIBLE APPLICATIONS
15A NCAC 01J .1701 COMMON CRITERIA
Authority G.S. 159G-44.
SECTION .1800 - ASSIGNMENT OF CATEGORY TO
WASTEWATER SYSTEM APPLICATIONS
15A NCAC 01J .1801 ASSIGNMENT OF CATEGORY
TO WASTEWATER SYSTEM APPLICATIONS
Authority G.S. 159G-44.
SECTION .1900 – CRITERIA FOR EVALUATION OF
WASTEWATER SYSTEM APPLICATIONS
15A NCAC 01J .1901 EXISTING CONDITIONS
15A NCAC 01J .1902 WATER QUALITY
IMPROVEMENT CRITERIA
Authority G.S. 159G-44.
SECTION .2000 - PRIORITY CRITERIA FOR PUBLIC
WATER SYSTEM PROJECTS
15A NCAC 01J .2001 PUBLIC NECESSITY: HEALTH:
SAFETY AND WELFARE
15A NCAC 01J .2002 PROJECT PLANNING
15A NCAC 01J .2003 SOURCE WATER PROTECTION
Authority G.S. 159G-44.
SECTION .2100 – LOAN AND GRANT AWARD AND
COMMITMENT: DISBURSEMENT OF LOANS AND
GRANTS
15A NCAC 01J .2101 CRITERIA FOR LOAN
ADJUSTMENTS
Authority G.S. 159G-44.
SECTION .2200 – LOAN REPAYMENTS
15A NCAC 01J .2201 REPAYMENT OF PRINCIPAL
AND INTEREST ON LOANS
Authority G.S. 159G-44.
SUBCHAPTER 01K - GROUNDWATER PROTECTION
LOAN FUND
SECTION .0100 - PROGRAM SCOPE
15A NCAC 01K .0101 GENERAL
15A NCAC 01K .0102 APPLICABILITY
15A NCAC 01K .0103 DEFINITIONS
Authority G.S. 143-215.94A; 143-215.94P; 143-215.94T;
143B-279.2.
SECTION .0200 – APPLICATION
15A NCAC 01K .0201 ELIGIBILITY
15A NCAC 01K .0202 APPLICATION PROCEDURES
Authority G.S. 143-215.94C; 143-215.94P; 143-215.94T.
SECTION .0300 - LOAN ADMINISTRATION
15A NCAC 01K .0301 BANK ELIGIBILITY
15A NCAC 01K .0302 LOAN PROCESSING BY BANKS
15A NCAC 01K .0303 DUTIES OF THE LOAN FUND
COORDINATOR
15A NCAC 01K .0304 LOAN APPROVAL CRITERIA
15A NCAC 01K .0305 DELINQUENT ACCOUNTS
Authority G.S. 143-215.94O(g); 143-215.94P.
SECTION .0400 - LOAN CONDITIONS
15A NCAC 01K .0401 LOAN ADMINISTRATION FEES
AND COSTS
15A NCAC 01K .0402 INTEREST AND TERM
15A NCAC 01K .0403 ADDITIONAL CONDITIONS
15A NCAC 01K .0404 FUNDING OF LOAN
Authority G.S. 143-215.94P; 143-215.94T.
* * * * * * * * * * * * * * * * * * * *
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commission for Public Health intends to adopt the rules
cited as 15A NCAC 18A .2650-.2676 and repeal the rules cited
as .2601-.2645.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1449
Link to agency website pursuant to G.S. 150B-19.1(c):
http://cph.publichealth.nc.gov
Proposed Effective Date: September 1, 2012
Public Hearing:
Date: April 12, 2012
Time: 2:00 p.m.
Location: Cardinal Room, 5605 Six Forks Road, Raleigh, NC
Reason for Proposed Action: These Rules are proposed for
repeal to enable the adoption of the USFDA food code for NC,
as described below:
The Food Protection Program (FPP) of the Environmental
Health Section, DPH/NCDHHS, oversees the food protection
rules governing food establishments—including restaurants,
food stands, school cafeterias, and food service facilities in
hospitals and nursing homes. The current rules, 15A NCAC 18A
.2600, were adopted in 1976 and have been periodically
amended to address specific needs. However, changes in
consumer consumption patterns, recent emphasis on increased
government efficiency, as well as shifts in the national food
safety focus necessitate a more fundamental change to North
Carolina's retail food protection rules. As a result, the FPP
proposes to adopt the U.S. Food and Drug Administration's
2009 Food Code.
The purpose of adopting the Food Code is to replace what has
proven to be a labor-intensive and ineffective process of
updating North Carolina's food protection rules with a more
efficient and effective method. The legislature recognized that
need and passed a law (S.L. 2011-394, Section 15(a)) in 2011
that provides the Department with the authority to adopt the
2009 Food Code by reference. As opposed to proposing new
rules (and/or amendments to existing rules) each year, the FPP
will have the option of adopting the latest version or adopting
new provisions of the Food Code once every four years. Thus,
the rulemaking process will be greatly shortened and
unnecessary expenditures of staff resources will be prevented.
Most importantly, North Carolina's food protection rules will
remain consistent with the national standard.
The FPP's adoption of the Food Code has a variety of
advantages and has gained support from all stakeholders within
the food safety spectrum; industry, consumer groups, academia,
regulators, and local, state, and federal agencies. For members
of the food service industry, many of which are associated with
the national chains, the Food Code brings needed uniformity
and consistency with the food safety rules of other states. The
Food Code also provides effective means of reducing the risks of
foodborne illnesses within food service facilities, thus protecting
consumers and industry from potentially devastating health
consequences and financial losses. In addition, the Food Code
offers proven scientific reasons behind each rule and actively
seeks input from the scientific and academic community as their
understanding of foodborne pathogens increases. Local, state,
and federal agencies and regulators support the adoption of the
Food Code because it provides a comprehensive approach to
food safety management, superior supporting documents and
training, and is consistent with the national integrated food
safety management system.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be submitted in writing to Chris
G. Hoke, JD, the Rule-Making Coordinator, during the public
comment period. Additionally, objections may be made verbally
and/or in writing at the public hearing for these rules.
Comments may be submitted to: Chris Hoke, 1931 Mail
Service Center, Raleigh, NC 27699-1931, phone (919)707-5006,
email chris.hoke@dhhs.nc.gov
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM: January 3, 2012
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 18 - ENVIRONMENTAL HEALTH
SUBCHAPTER 18A - SANITATION
SECTION .2600 – FOOD PROTECTION AND
SANITATION OF FOOD ESTABLISHMENTS
Note: The Codifier of Rules has determined that publication of
the complete text of these rules proposed to be repealed is
impractical (G.S. 150B-17(b)).
15A NCAC 18A .2601 DEFINITIONS
15A NCAC 18A .2602 PERMITS
15A NCAC 18A .2603 PUBLIC DISPLAY OF GRADE
CARD
15A NCAC 18A .2604 INSPECTIONS AND
REINSPECTIONS
15A NCAC 18A .2605 INSPECTION FORMS
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1450
15A NCAC 18A .2607 STANDARDS AND APPROVAL
OF PLANS
15A NCAC 18A .2608 SOURCES OF FOOD
15A NCAC 18A .2609 REFRIGERATION: THAWING:
AND PREPARATION OF FOOD
15A NCAC 18A .2610 STORAGE: HANDLING: AND
DISPLAY OF FOOD
15A NCAC 18A .2611 RE-SERVING OF FOOD
15A NCAC 18A .2612 SHELLFISH
15A NCAC 18A .2613 BARBECUE PLACES
15A NCAC 18A .2614 OUTDOOR DINING
15A NCAC 18A .2615 MILK AND MILK PRODUCTS
15A NCAC 18A .2616 REQUIREMENTS FOR
EMPLOYEES
15A NCAC 18A .2617 UTENSILS AND EQUIPMENT
15A NCAC 18A .2618 CLEANING OF EQUIPMENT
AND UTENSILS
15A NCAC 18A .2619 METHODS OF BACTERICIDAL
TREATMENT
15A NCAC 18A .2620 STORAGE AND HANDLING OF
UTENSILS AND EQUIPMENT
15A NCAC 18A .2621 DRINKING WATER
FOUNTAINS
15A NCAC 18A .2622 STORAGE: HANDLING: AND
USE OF ICE
15A NCAC 18A .2623 WATER SUPPLY
15A NCAC 18A .2624 TOILET FACILITIES
15A NCAC 18A .2625 LAVATORY FACILITIES
15A NCAC 18A .2626 DISPOSAL OF WASTES AND
BY-PRODUCTS
15A NCAC 18A .2627 FLOORS
15A NCAC 18A .2628 WALLS AND CEILINGS
15A NCAC 18A .2629 DOORS AND WINDOWS
15A NCAC 18A .2630 LIGHTING
15A NCAC 18A .2631 VENTILATION
15A NCAC 18A .2632 STORAGE SPACES
15A NCAC 18A .2633 PREMISES: MISCELLANEOUS:
VERMIN CONTROL
15A NCAC 18A .2634 REQUIREMENTS FOR FOOD
STANDS
15A NCAC 18A .2635 REQUIREMENTS FOR
TEMPORARY FOOD
ESTABLISHMENTS
15A NCAC 18A .2636 REQUIREMENTS FOR
TEMPORARY RESTAURANTS
15A NCAC 18A .2637 EMPLOYEES' COOK TENTS
15A NCAC 18A .2638 GENERAL REQUIREMENTS
FOR PUSHCARTS AND MOBILE FOOD UNITS
15A NCAC 18A .2639 SPECIFIC REQUIREMENTS
FOR PUSHCARTS
15A NCAC 18A .2640 SPECIFIC REQUIREMENTS
FOR MOBILE FOOD UNITS
15A NCAC 18A .2641 PROCEDURE WHEN
INFECTION SUSPECTED
15A NCAC 18A .2642 SEVERABILITY
15A NCAC 18A .2643 INFORMAL REVIEW PROCESS
AND APPEALS PROCEDURE
Authority G.S. 130A-248.
15A NCAC 18A .2644 REQUIREMENTS FOR
CATERED ELDERLY NUTRITION SITES
Authority G.S. 130A-248.
15A NCAC 18A .2645 REQUIREMENTS FOR LIMITED
FOOD SERVICE ESTABLISHMENTS
Authority G.S. 130A-248.
15A NCAC 18A .2650 GENERAL – ADOPTION BY
REFERENCE
The 2009 Food Code, not including subsequent amendments and
editions, established by the U.S. Department of Health and
Human Services, Food and Drug Administration (hereinafter
referred to as the "Food Code") is incorporated by reference. The
Food Code may be accessed from the internet at
www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode
/default.htm, or a copy can be obtained by contacting the U.S.
Department of Commerce, National Technical Information
Service, at (703) 605-6040, and is also available for inspection at
the Division of Public Health, N.C. Department of Health and
Human Services.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2651 DEFINITIONS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 1, the following apply:
(1) In Paragraph 1-201.10(B), add: "'Commissary'
means a food establishment that services a
mobile food unit or a pushcart."
(2) In Paragraph 1-201.10(B), add: "'Congregate
nutrition sites' means a food establishment
where food preparation is limited to same day
service, reheating of potentially hazardous
food (time/temperature control for safety
food), and operated under the rules of the
Division of Aging, N.C. Department of Health
and Human Services."
(3) In Paragraph 1-201.10(B), add: "'Department'
means the N.C. Department of Health and
Human Services."
(4) In Paragraph 1-201.10(B), amend "Food
establishment (2)(b)" to read: "An operation
that is conducted in a mobile, stationary,
temporary, or permanent facility or location
and where consumption is on or off the
premises."
(5) In Paragraph 1-201.10(B), amend "Food
establishment (3)" to read: "'Food
establishment' does not include entities
exempted as described in G.S. 130A-250."
(6) In Paragraph 1-201.10(B), add: "'Food stand'
means a food establishment which prepares or
serves food and which does not provide
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1451
seating facilities for customers to use while
eating or drinking."
(7) In Paragraph 1-201.10(B), add: "'Good repair'
means equipment and utensils shall be
maintained in a state of repair and condition
that meets the requirements specified under
Parts 4-1 and 4-2 of the Food Code as
amended by Rule .2654."
(8) In Paragraph 1-201.10(B), amend "Imminent
health hazard" to: "'Imminent hazard' means an
imminent hazard as defined in G.S. 130A-
2(3)."
(9) In Paragraph 1-201.10(B), add: "'Limited food
establishment' means a food establishment as
defined in G.S. 130A-247(7)."
(10) In Paragraph 1-201.10(B), add: "'Local health
director' means a local health director as
defined in G.S. 130A-2(6)."
(11) In Paragraph 1-201.10(B), amend "Meat" to
read: "'Meat' means the flesh of animals used
as food including the dressed flesh of cattle,
swine, sheep, or goat, other edible animals,
and as defined in G.S. 106-549.15(14), except
fish, poultry, and wild game animals as
specified under Subparagraphs 3-201.17(A)(3)
and (4)."
(12) In Paragraph 1-201.10(B), add: "'Mobile food
unit' means a food establishment or pushcart
designed to be readily moved and vend food."
(13) In Paragraph 1-201.10(B), amend "Person" to:
"'Person' means person as defined in G.S.
130A-2(7)."
(14) In Paragraph 1-201.10(B), amend "Poultry (1)"
to read: "Any domesticated bird (chickens,
turkeys, ducks, geese, guineas, ratites, or
squabs), whether live or dead, as defined in
9 CFR 381.1 Poultry Products Inspection
Regulations Definitions, Poultry, and G.S.
106-549.51(26); and"
(15) In Paragraph 1-201.10(B), add: "'Pushcart'
means a mobile piece of equipment or vehicle
used to vend food."
(16) In Paragraph 1-201.10(B), add: "'Registered
Environmental Health Specialist' means a
Registered Environmental Health Specialist as
defined in G.S. 90A-51(2b) and 90A-51(4) and
authorized agent of the Department."
(17) In Paragraph 1-201.10(B), add: "'Regulatory
Authority' means the Department or authorized
agent of the Department."
(18) In Paragraph 1-201.10(B), add: "'Restaurant'
means a food establishment which prepares or
serves food and provides seating."
(19) In Paragraph 1-201.10(B), add: "'Supplemental
cooking room' means a separate attached or
detached structure in which food is cooked on
grills, pits, or fireplaces and no other
processing occurs."
(20) In Paragraph 1-201.10(B), amend "Temporary
food establishment" to: "'Temporary food
establishment' means a food establishment
which operates for a period of time not to
exceed 21 days in one location, affiliated with
and endorsed by a transitory fair, carnival,
circus, festival, or public exhibition. Food
establishments that operate in the same event
location for more than 21 days per calendar
year are not eligible for a temporary food
establishment permit. Domestic yard sales and
businesses such as auctions, flea markets, or
farmers' markets are not eligible for a
temporary food establishment permit."
(21) In Paragraph 1-201.10(B), add: "'Temporary
food establishment commissary' means a food
establishment affiliated with a temporary food
establishment which prepares food in advance
or off-site. The temporary food establishment
commissary permit shall be valid for no more
than 21 consecutive days and shall be
permitted no more than 7 days prior to
commencement of the event. Food
Establishments that operate in the same
location for more than 21 days per calendar
year are not eligible for a temporary food
establishment commissary permit. Food shall
not be sold from the temporary food
establishment commissary. The temporary
food establishment commissary shall comply
with all temporary food establishment
requirements."
(22) In Paragraph 1-201.10(B), add: "'Transitional
Permit' means a permit issued by the
regulatory authority upon the transfer of
ownership or lease of an existing food
establishment to allow the correction of
construction and equipment problems that do
not represent an immediate threat to public
health. The transitional permit shall expire 180
days after the date of issuance."
(23) In Paragraph 1-201.10(B), delete "Vending
machine."
(24) In Paragraph 1-201.10(B), delete "Vending
machine location."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2652 MANAGEMENT AND
PERSONNEL
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 2, the following apply:
(1) In Paragraph 2-101.11(B), amend to read: "In
a food establishment with two or more
separately permitted departments that are the
legal responsibility of the same permit holder
and that are located on the same premises, the
permit holder may designate a single person in
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1452
charge who is present on the premises during
all hours of operation, and who is responsible
for each separately permitted food
establishment on the premises."
(2) In Section 2-102.11, amend the last sentence
in the first paragraph to: "The person in charge
shall demonstrate this knowledge by being a
certified food protection manager who has
shown proficiency of required information
through passing a test that is part of an
accredited program."
(3) In Section 2-102.11, delete (A), (B), and (C).
(4) In Subpart 2-102, add Section 2-102.12,
Certified Food Protection Manager, to read:
"2-102.12 Certified Food Protection
Manager.
(A) At least one employee that has supervisory
and management responsibility and the
authority to direct and control food preparation
and service shall be a certified food protection
manager who has shown proficiency of
required information through passing a test
that is part of an American National Standards
Institute (ANSI)-accredited program, which is
the accrediting organization for the
Conference for Food Protection Standards for
accreditation of food protection manager
certification programs.
(B) This section does not apply to Risk
Category I food establishments as defined in
10A NCAC 46 .0213."
(5) In Section 2-102.20, replace "Paragraph 2-
102.11(B)" with "Section 2-102.11."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2653 FOOD
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 3, the following apply:
(1) In Paragraph 3-201.11(A), add at the end:
"Food from food establishments in states
adjacent to North Carolina may be sold within
North Carolina if the food establishments are
under jurisdiction of the local or state
enforcement body in that state and approved
by the regulatory authority in North Carolina.
To determine the extent of compliance with
this Code, the regulatory authority may accept
reports regarding compliance and compliance
history from responsible authorities in other
jurisdictions where the food establishments are
located."
(2) In Paragraph 3-301.11(B), amend to read:
"Except when washing fruits and vegetables as
specified under Section 3-302.15 or as
specified in Paragraphs (D) and (E) of this
section, food employees may not contact
exposed ready-to-eat food with their bare
hands and shall use suitable utensils such as
deli tissue, spatulas, tongs, single-use gloves,
or dispensing equipment."
(3) In Paragraph 3-301.11(D), amend to read:
"Paragraph (B) of this section does not apply
to a food employee who contacts exposed,
ready-to-eat food with bare hands at the time
the ready-to-eat food is being added as an
ingredient to a food that is to be cooked in the
food establishment to heat all parts of the food
to a temperature of at least 74ºC (165ºF)."
(4) In Section 3-301.11, redesignate existing
Paragraph (D) as new Paragraph (E).
(5) In Subparagraph 3-301.11(D)(7), replace
"(D)(1)-(6)" with "(E)(1)-(6)."
(6) Delete Section 3-305.13.
(7) In Section 3-306.12, delete (B).
(8) In Paragraph 3-403.11(D), amend to read:
"Reheating for hot holding as specified under
Paragraphs (A) through (C) of this section
shall be completed within 2 hours and the time
the food is between 5ºC (41ºF) or 7ºC (45ºF)
and the temperatures specified under
Paragraphs (A) through (C) of this section may
not exceed 2 hours."
(9) In Paragraph 3-501.12(A), amend to read:
"Under refrigeration that maintains the food
temperature at 5oC (41oF) or less, or at 7ºC
(45ºF) or less as specified under Subparagraph
3-501.16(A)(2)(b); or"
(10) In Paragraph 3-501.13(A), amend to read:
"Under refrigeration that maintains
the food temperature at 5°C (41°F) or less, or
at 7°C (45°F) or less as specified under
Subparagraph 3-501.16(A)(2)(b); or"
(11) In Paragraph 3-501.13(B), amend to read:
"Completely submerged under running water:
(1) At a water temperature of 21°C
(70°F) or below,
(2) With sufficient water velocity to
agitate and float off loose particles in
an overflow, and
(3) For a period of time that does not
allow thawed portions of ready-to-eat
food to rise above 5°C (41°F), or 7°C
(45°F) as specified under
Subparagraph 3-501.16(A)(2)(b), or
(4) For a period of time that does not
allow thawed portions of a raw
animal food requiring cooking as
specified under Paragraph 3-
401.11(A) or (B) to be above 5°C
(41°F), or 7°C (45°F) as specified
under Subparagraph 3-
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1453
501.16(A)(2)(b), for more than 4
hours including:
(a) The time the food is
exposed to the running water
and the time needed for
preparation for cooking, or
(b) The time it takes under
refrigeration to lower the
food temperature to 5°C
(41°F), or 7°C (45°F) as
specified under
Subparagraph 3-
501.16(A)(2)(b);"
(12) In Subparagraph 3-501.14(A)(2), amend to
read: "Within a total of 6 hours from 57ºC
(135ºF) to 5ºC (41ºF) or less, or to 7ºC (45ºF)
or less as specified under Subparagraph 3-
501.16(A)(2)(b)."
(13) In Paragraph 3-501.14(B), amend to read:
"Potentially hazardous food (time/temperature
control for safety food) shall be cooled within
4 hours to 5C (41F) or less, or to 7ºC (45F)
or less as specified under Subparagraph 3-
501.16(A)(2)(b), if prepared from ingredients
at ambient temperature, such as reconstituted
foods and canned tuna."
(14) In Subparagraph 3-501-16(A)(2), amend to
read:
"At a temperature specified in the following:
(a) 5ºC (41°F) or less; or
(b) 7°C (45°F) or between 5°C (41°F)
and 7°C (45°F) in existing
refrigeration equipment that is not
capable of maintaining the food at
5°C (41°F) or less if:
(i) The equipment is in place
and in use in the food
establishment; and
(ii) On or before January 1,
2016, the equipment is
upgraded or replaced to
maintain food at a
temperature of 5°C (41°F) or
less."
(15) In Paragraph 3-501.17(A), amend to read:
"(A) Except when packaging food using a
reduced oxygen packaging method as
specified under Section 3-502.12, and except
as specified in Paragraphs (D) and (E) of this
section, refrigerated, ready-to eat, potentially
hazardous food (time/temperature control for
safety food) prepared and held in a food
establishment for more than 24 hours shall be
clearly marked to indicate the date or day by
which the food shall be consumed on the
premises, sold, or discarded, based on the
temperature and time combinations specified
below. The day of preparation shall be counted
as Day 1.
(1) 5°C (41°F) or less for a maximum
of 7 days; or
(2) 7°C (45°F) or between 5°C (41°F)
and 7°C (45°F) for a maximum of 4
days in existing refrigeration
equipment that is not capable of
maintaining the food at 5°C (41°F) or
less if:
(a) The equipment is in place
and in use in the food
establishment, and
(b) On or before January 1,
2016, the equipment is
upgraded or replaced to
maintain food at a
temperature of 5°C (41°F) or
less."
(16) In Paragraph 3-501.19(B), amend to read: "If
time without temperature control is used as the
public health control up to a maximum of 4
hours:"
(17) In Subparagraph 3-501.19(B)(1), amend to
read: "The food shall have an initial
temperature of 5ºC (41ºF) or less, or 7ºC
(45F) or less when removed from cold
holding temperature control, or 57C (135F)
or greater when removed from hot holding
temperature control;"
(18) In Paragraph 3-801.11(D), amend to read:
"Food employees may not contact ready-to-eat
food as specified under Paragraphs 3-
301.11(B) and (E)."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2654 EQUIPMENT, UTENSILS, AND
LINENS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 4, the following apply:
(1) Delete Sections 4-204.14, 4-204.19, 4-
204.111, 4-204.121, and 4-204.123.
(2) In Section 4-205.10, amend to read: "Except
for toasters, mixers, microwave ovens, water
heaters, and hoods, food equipment shall be
certified or classified for sanitation by an
American National Standards Institute
(ANSI)-accredited certification program. If the
equipment is not certified or classified for
sanitation, the equipment shall meet Parts 4-1
and 4-2 of the Food Code as amended by Rule
2655. Nonabsorbent wooden shelves which are
in good repair may be used in dry storage
areas."
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1454
(3) In Section 4-301.14, amend to read:
"Ventilation hood systems and devices shall
prevent grease or condensation from collecting
on equipment, walls, and ceilings."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2655 WATER, PLUMBING, AND
WASTE
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 5, the following applies:
Delete Paragraph 5-203.11(C) and Section 5-501.14.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2656 PHYSICAL FACILITIES
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 6, the following apply:
(1) Delete Section 6-202.17.
(2) Delete Section 6-202.18.
(3) In Paragraph 6-501.115(B), amend to read:
"Live animals are allowed in the following
situations if the owner or operator does not
permit animals to physically contact food,
serving dishes, utensils, tableware, linens,
unwrapped single-service and single-use
articles or other food service items that may
result in contamination of food or food-contact
surfaces and does not permit animals to
physically contact employees engaged in the
preparation or handling of food:
(1) Fish or crustacea in
aquariums or display tanks;
(2) Patrol dogs accompanying
police or security officers in
offices and dining, sales, and
storage areas; and sentry
dogs in outside fenced areas;
(3) Service animals
accompanying persons with
disabilities in areas that are
not used for food
preparation; and
(4) Dogs (Canis lupus
familiaris) and cats (Felis
catus) in outdoor dining
areas; provided that dogs
and cats are physically
restrained, and do not pass
through any indoor areas of
the food establishment.
Except for service animals
described in Subparagraph
(3) of this Paragraph,
nothing in this Rule
prohibits a food
establishment from
prohibiting dogs and cats in
outdoor dining areas.
(5) In areas that are not used for
food preparation, storage,
sales, display, or dining, in
which there are caged
animals or animals that are
similarly confined, such as
in a variety store that sells
pets or a tourist park that
displays animals."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2657 POISONOUS OR TOXIC
MATERIALS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 7, the following apply:
(1) In Section 7-101.11, add at the end: "Only
those pesticides which have been registered
with the EPA and with the N.C. Department of
Agriculture and Consumer Services shall be
used. If the manufacturer's label is missing
from a pesticide container, the container shall
be identified with the manufacturer's product
brand name, percentage of each active
ingredient, and EPA registration number."
(2) In Section 7-203.11, add at the end:
"Sanitizing solutions shall not be stored in or
dispensed from containers previously
containing other poisonous or toxic materials."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2658 COMPLIANCE AND
ENFORCEMENT
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 8, the following apply:
(1) In Section 8-103.10, add the following to the
end: "Variance requests shall be submitted to a
committee including a food scientist and
representatives from industry and state and
local public health agencies, appointed by the
Department."
(2) In Section 8-201.11, add the following to the
beginning: "Plans drawn to scale for
franchised or chain food establishments shall
be submitted for review and approval to the
Environmental Health Services Branch, N.C.
Division of Public Health. Plans drawn to
scale for independent food establishments
shall be submitted for review and approval to
the local health department."
(3) In Paragraph 8-201.12(A), amend to read:
"Intended menu and plan review application;"
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1455
(4) In Paragraph 8-302.14(G), amend to read: "A
statement signed by the applicant that attests to
the accuracy of the information provided in the
application."
(5) In Paragraph 8-302.14(G), delete (1) and (2).
(6) In Section 8-303.20, delete "Permit Renewal"
from the heading.
(7) In Section 8-303.20, amend to read: "As
applicable, the regulatory authority may issue
a permit in accordance with 15A NCAC 18A
.2659, to a new owner of an existing food
establishment after a properly completed
application is submitted, reviewed, and
approved, and an inspection shows that the
establishment is in compliance with this Code.
If the establishment is not in compliance with
the Code, a transitional permit may be issued
in accordance with G.S. 130A-248 (b) and (c)
and Rule .2659(b)."
(8) Delete Section 8-304.10.
(9) Delete Paragraph 8-304.11(A).
(10) Delete Section 8-304.20.
(11) In Section 8-401.10, delete (A) and replace
with: "The regulatory authority shall inspect a
food establishment in accordance with 10A
NCAC 46 .0213."
(12) In Section 8-401.10, delete (B) and (C).
(13) Delete Section 8-401.20.
(14) Delete Section 8-402.10.
(15) In Subparagraph 8-402.20(A)(1), amend to
read: "The permit holder shall allow access to
the regulatory authority as specified under
Section 8-402.11 of the Code and G.S. 130A-
17 and 130A-249."
(16) In Subparagraph 8-402.20(A)(3), amend to
read: "If access is denied, an administrative
warrant may be obtained according to G.S. 15-
27.2; and"
(17) In Section 8-402.40, amend heading to read:
"Administrative Warrant to Gain Access."
(18) In Section 8-402.40, amend to read: "If denied
access to a food establishment for an
authorized purpose and after complying with
Section 8-402.20 of the Food Code as
amended by Rule .2658, the regulatory
authority may issue, or apply for the issuance
of, an administrative warrant to gain access as
provided by G.S. 15-27.2."
(19) In Section 8-403.20, delete the reference to
Section 8-406.11.
(20) Delete Section 8-406.11.
(21) Delete Subpart 8-501.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2659 PERMITS
(a) No permit to operate shall be issued to a person until an
evaluation by the regulatory authority shows that the
establishment complies with this Section. However, the
regulatory authority shall allow a period of 210 days after the
date of issuance to comply with the certified food protection
manager requirements in Sections 2-102.11 and 2-102.12 of the
Food Code as amended by Rule .2652.
(b) Upon transfer of ownership of an existing food
establishment, the regulatory authority shall complete an
evaluation. If the establishment satisfies all the requirements of
the rules, a permit shall be issued. If the establishment does not
satisfy all the requirements of the rules, a permit shall not be
issued. A transitional permit may be issued if the regulatory
authority determines that the noncompliant items are
construction or equipment problems that do not represent a
threat to public health, or no certified food protection manager is
on the premises. The transitional permit shall expire 180 days
after the date of issuance, unless suspended or revoked before
that date, and shall not be renewed. Upon expiration of the
transitional permit, the permit holder shall have corrected the
noncompliant items and obtained a permit, or the food
establishment shall not continue to operate.
(c) The regulatory authority may impose conditions on the
issuance of a permit or transitional permit. Conditions shall be
specified for one or more of the following areas:
(1) The number of seats or consumers served.
(2) The categories of food served.
(3) Time schedules in completing minor
construction items.
(4) Modification or maintenance of water
supplies.
(5) Use of facilities for more than one purpose.
(6) Continuation of contractual arrangements upon
which basis the permit was issued.
(7) Submission and approval of plans for
renovation.
(8) Any other conditions necessary for a food
establishment to remain in compliance with
this Section.
(d) If a permit or transitional permit has been suspended, the
suspension shall be lifted if the regulatory authority has
evaluated the food establishment and found that the violations
causing the suspension have been corrected. If a permit or
transitional permit has been revoked, a new permit shall be
issued only after the regulatory authority has evaluated the food
establishment and found it to comply with all applicable rules.
The evaluations shall be conducted within 15 days after the
request is made by the permit holder.
Authority G.S. 130A; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2660 PUBLIC DISPLAY OF GRADE
CARDS
(a) Upon initial inspection of a food establishment or if a
renovation or other change in the establishment makes the grade
card inconspicuous, the regulatory authority shall designate the
location for posting the grade card. The grade card shall be
located in a conspicuous place where it may be readily observed
by the public upon entering the food establishment. If the person
in charge of the food establishment objects to the location
designated by the regulatory authority then the person in charge
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1456
may suggest an alternative location which meets the criteria of
this Rule.
(b) When an inspection of a food establishment is made, the
regulatory authority shall remove the existing grade card, issue a
new grade card, and post the new grade card in the same location
where the grade card was previously posted as long as that
location remains conspicuous. The person in charge of the food
establishment shall keep the grade card posted at the designated
location at all times. The grade card may be posted in another
location which meets the criteria of this Rule if agreed upon by
the person in charge and the regulatory authority.
(c) On a mobile food unit and pushcart, the grade card shall be
located where it is visible to the public when purchasing food.
The grade card shall be maintained on the mobile food unit and
pushcart and may be removed during transport to operating
locations and the person in charge shall repost the grade card in
the original location prior to commencing operation.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2661 INSPECTIONS AND
REINSPECTIONS
(a) Upon entry into a food establishment, the regulatory
authority shall provide identification and the purpose in visiting
that establishment. The regulatory authority shall inquire as to
the identity of the person in charge and invite the person in
charge to accompany the regulatory authority during the
inspection. If no employee is identified as the person in charge,
the regulatory authority shall invite an employee to accompany
them on the inspection. Following the inspection, the regulatory
authority shall offer to review the results of the inspection with
the person in charge or employee, as applicable.
(b) The grading of food establishments shall be conducted using
an inspection form furnished by the regulatory authority. The
form shall provide for the following information:
(1) The name and mailing address of the food
establishment;
(2) The name of the permit holder;
(3) The permit status and score given;
(4) Standards of construction and operation as
listed in .2651 through .2677 of this Section;
(5) An explanation for all points deducted;
(6) The signature of the regulatory authority; and
(7) The date.
(c) The grading of food establishments shall be based on the
standards of operation and construction as set forth in Rules
.2650 through .2676 of this Section.
(d) The Food Establishment Inspection form shall be used to
document points assessed for violation of the rules of this
Section as follows:
(1) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to person in charge present, certification by
accredited program or performs duties shall
equal no more than 2 points.
(2) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to management awareness, policy present, and
allergy awareness shall equal no more than 3
points.
(3) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to proper use of reporting, restriction, and
exclusion shall equal no more than 3 points.
(4) Violation of Chapters 2 and 3 of the Food
Code as amended by Rules .2652 and .2653 of
this Section related to proper eating, tasting,
drinking, or tobacco use shall equal no more
than 2 points.
(5) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to no discharge from eyes, nose, and mouth
shall equal no more than 1 point.
(6) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to hands clean and properly washed shall equal
no more than 4 points.
(7) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to no bare hand contact with ready-to-eat food
or approved alternate method properly
followed shall equal no more than 3 points.
(8) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to handwashing facilities
supplied and accessible shall equal no more
than 2 points.
(9) Violation of Chapters 3 and 5 of the Food
Code as amended by Rules .2653 and .2655 of
this Section related to food obtained from an
approved source shall equal no more than 2
points.
(10) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food received at proper temperature shall
equal no more than 2 points.
(11) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food in good condition, safe, and
unadulterated shall equal no more than 2
points.
(12) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to required records available, shellstock tags,
and parasite destruction shall equal no more
than 2 points.
(13) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food separated and protected shall equal no
more than 3 points.
(14) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to food-contact surfaces cleaned and sanitized
shall equal no more than 3 points.
(15) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to disposition of returned, previously served,
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1457
reconditioned, and unsafe food shall equal no
more than 2 points.
(16) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cooking time and temperatures shall equal
no more than 3 points.
(17) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to reheating for hot holding shall equal no
more than 3 points.
(18) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cooling time and temperatures shall equal
no more than 3 points.
(19) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to hot holding temperatures shall equal no
more than 3 points.
(20) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cold holding temperatures shall equal no
more than 3 points.
(21) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to date marking and disposition shall equal no
more than 3 points.
(22) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to time as a public health control procedures
and records shall equal no more than 2 points.
(23) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to consumer advisory provided for raw or
undercooked foods shall equal no more than 1
point.
(24) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to pasteurized foods used and prohibited foods
not offered shall equal no more than 3 points.
(25) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food additives approved and properly used
shall equal no more than 1 point.
(26) Violation of Chapter 7 of the Food Code as
amended by Rule .2657 of this Section related
to toxic substances properly identified, stored,
and used shall equal no more than 2 points.
(27) Violation of Chapters 3, 4 and 8 of the Food
Code as amended by Rules .2653, .2654, and
.2658 of this Section related to compliance
with variance, specialized process, and
HACCP plan shall equal no more than 2
points.
(28) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to pasteurized eggs used where required shall
equal no more than 1 point.
(29) Violation of Chapters 3 and 5 of the Food
Code as amended by Rules .2653 and .2655 of
this Section related to water from an approved
source shall equal no more than 2 points.
(30) Violation of Chapter 8 of the Food Code as
amended by Rule .2658 of this Section related
to variance obtained for specialized processing
methods shall equal no more than 1 point.
(31) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to proper cooling methods
used or adequate equipment for temperature
control shall equal no more than 1 point.
(32) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to plant food properly cooked for hot holding
shall equal no more than 1 point.
(33) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to approved thawing methods used shall equal
no more than 1 point.
(34) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to thermometers provided and accurate shall
equal no more than 1 point.
(35) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food properly labeled or original container
shall equal no more than 2 points.
(36) Violation of Chapters 2 and 6 of the Food
Code as amended by Rules .2652 and .2656 of
this Section related to insects and rodents not
present or no unauthorized animals or persons
shall equal no more than 2 points.
(37) Violation of Chapters 3 and 6 of the Food
Code as amended by Rules .2653 and .2656 of
this Section related to contamination prevented
during food preparation, storage, and display
shall equal no more than 2 points.
(38) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to personal cleanliness shall equal no more
than 1 point.
(39) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to wiping cloths properly
used and stored shall equal no more than 1
point.
(40) Violation of Chapters 3 and 7 of the Food
Code as amended by Rules .2653 and .2657 of
this Section related to washing fruits and
vegetables shall equal no more than 1 point.
(41) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to in-use utensils properly stored shall equal
no more than 1 point.
(42) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to utensils, equipment, and linens properly
stored, dried and handled shall equal no more
than 1 point.
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1458
(43) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to single-use and single-service articles
properly stored and used shall equal no more
than 1 point.
(44) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to gloves used properly shall equal no more
than 1 point.
(45) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to equipment, food and
non-food contact surfaces approved, cleanable,
properly designed, constructed and used shall
equal no more than 2 points.
(46) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to warewashing facilities installed, maintained,
used, and test strips shall equal no more than 1
point.
(47) Violation of Chapter 4 of the Food Code as
amended by Rule.2654 of this Section related
to non-food contact surfaces clean shall equal
no more than 1 point.
(48) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to hot and cold water available and adequate
pressure shall equal no more than 2 points.
(49) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to plumbing installed and proper backflow
devices shall equal no more than 2 points.
(50) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to sewage and wastewater properly disposed
shall equal no more than 2 points.
(51) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to toilet facilities properly
constructed, supplied, and cleaned shall equal
no more than 1 point.
(52) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to garbage and refuse
properly disposed and facilities maintained
shall equal no more than 1 point.
(53) Violation of Chapters 4 and 6 of the Food
Code as amended by Rules .2654 and .2656 of
this Section related to physical facilities
installed, maintained, and clean shall equal no
more than 1 point.
(54) Violation of Chapters 4 and 6 of the Food
Code as amended by Rules .2654 and .2656 of
this Section related to meets ventilation and
lighting requirements and designated areas
used shall equal no more than 1 point.
(e) In filling out the inspection form, points may be deducted
only once for a single occurrence or condition existing within or
outside of the food establishment. Deductions shall be based on
actual violations of the rules of this Section observed during the
inspection. The regulatory authority shall take zero, one-half, or
a full deduction of points depending upon the severity or the
recurring nature of the core item violations. Priority items or
priority foundation items may be corrected during the inspection
and no more than one-half of the total point value shall be
deducted when the violation meets the following criteria:
(1) The priority item or priority foundation item
violation was not documented on the previous
inspection; and
(2) Correction of the item is documented on the
inspection form.
(f) At the time of inspection, if a priority item or priority
foundation item violation is observed and not corrected, the
regulatory authority shall take one-half or a full deduction of
points depending upon the severity or the recurring nature of the
violation. The regulatory authority shall specify a time frame of
no more than 10 calendar days to correct the priority items or
priority foundation items.
(g) In determining whether items or areas of a food
establishment are clean for purposes of enforcing the rules set
forth in this Section and grading a food establishment, the
regulatory authority shall consider, among other things:
(1) The age of the accumulated material;
(2) The relative percentage of items which are
clean and not clean;
(3) The cleaning practices of the food
establishment; and
(4) The health risk posed by the circumstances.
(h) Upon request of the permit holder or his or her representative
a reinspection shall be made. In the case of a food establishment
which requests an inspection for the purpose of raising the
alphabetical grade, and which holds an unrevoked permit, the
regulatory authority shall make an unannounced inspection
within 15 days from the date of the request.
(i) In the case of food establishments that have been closed for
failure to comply with the rules of this Section, a reinspection to
consider the issuance or reissuance of a permit shall be made at
the earliest convenience of the regulatory authority.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2662 GRADING
(a) The grading of food establishments is based on a system of
scoring. A food establishment that earns a score of at least:
(1) 90 percent shall receive a grade A;
(2) 80 percent and less than 90 percent shall
receive a grade B;
(3) 70 percent and less than 80 percent shall
receive a grade C.
Permits shall be immediately revoked in accordance with G.S.
130A-23(d) for food establishments receiving a score of less
than 70 percent.
(b) The posted grade card shall be black on a white background.
All graphics, letters, and numbers for the grade card shall be
approved by the State. The alphabetical and numerical rating
shall be 1.5 inches in height. No other public displays
representing sanitation level of the establishment may be posted
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1459
by the regulatory authority, except for sanitation awards issued
by the local health department. Sanitation awards shall be in a
different color and size from the grade card and must be labeled
as an award.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2663 OUTDOOR DINING AND
BEVERAGE FACILITIES
(a) A Food establishment may provide outdoor dining and
beverage service.
(b) Beverages may be prepared outdoors if all equipment and
utensils are provided with overhead protection.
(c) Portable cooking, food, and beverage serving facilities shall
be allowed for food service provided to a club, organization, or
private individual as a planned event and from which the public
is excluded. All open food and utensils shall be provided with
overhead protection or otherwise equipped with individual
covers such as domes, chafing lids, or cookers with hinged lids.
(d) Food and beverage equipment and supplies shall be located
in enclosed areas and protected from environmental
contamination when not in operation.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2664 SUPPLEMENTAL COOKING
ROOMS
The following construction standards apply to food
establishments cooking on grills, pits, or fireplaces in
supplemental cooking rooms:
(1) Grills, pits, and fireplaces shall be kept clean,
maintained in good repair, and located in an
enclosed room as specified in Sections 6-
202.15 and 6-202.16 of the Food Code as
amended by Rule .2656 and shall comply with
Parts 4-1 and 4-2 of the Food Code as
amended by Rule .2654.
(2) Walls and ceilings shall be kept clean and in
good repair.
(3) Floors shall be constructed of easily cleanable
concrete or equal and graded to drain.
(4) Water under pressure shall be provided for
floor cleaning.
(5) Ventilation systems and devices shall prevent
grease or condensation from collecting on
walls and ceilings.
(6) A handwashing sink shall be provided as
specified in Section 5-202.12 of the Food
Code as amended by Rule .2655.
(7) Lighting shall comply with Sections 6-202.11
and 6-303.11 of the Food Code as amended by
Rule .2656.
(8) All food shall be processed in an area meeting
the requirements for operation and
construction as set forth in Rules .2650
through .2657.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2665 TEMPORARY FOOD
ESTABLISHMENT AND TEMPORARY FOOD
ESTABLISHMENT COMMISSARY PERMIT
REQUIREMENTS
(a) A permit shall be issued by the regulatory authority to each
temporary food establishment and temporary food establishment
commissary that complies with Rules .2665 through .2669 of
this Section. Temporary food establishments and temporary food
establishment commissaries are not eligible for transitional
permits. A single permit shall be issued for a temporary food
establishment that does not operate consecutive days as long as
the total number of days does not exceed 21. The permit shall be
posted in a conspicuous place designated by the regulatory
authority. The permit shall include:
(1) Name and location of the temporary food
establishment and temporary food
establishment commissary;
(2) Permit holder;
(3) Name and location of the event;
(4) Dates of operation; and
(5) Any other conditions necessary to remain in
compliance with this Section.
(b) No food preparation shall occur prior to a permit being
issued by the regulatory authority.
(c) When affiliated with a temporary food establishment for an
event where the food will be served, a temporary food
establishment commissary permit for prior food preparation may
be issued for advance or off-site preparation. A temporary food
establishment commissary may commence operation no more
than 7 days prior to the event and operate for the length of the
event up to a time period not to exceed 21 consecutive days.
(d) Temporary food establishments and temporary food
establishment commissaries shall make application to the
regulatory authority no less than 15 calendar days prior to
commencing operation. This 15-day requirement does not
prohibit the submission of applications for substitute vendors
provided that these applications are submitted no less than 3
business days prior to the event. Applications shall be submitted
to the regulatory authority and shall include the following:
(1) Name, mailing address, and telephone number
of the permit holder of the temporary food
establishment or temporary food establishment
commissary;
(2) Name and location of the event at which the
temporary food establishment operated
immediately prior to the current event for
which applying, if applicable;
(3) Name, mailing address, and telephone number
of the event organizer;
(4) Event name, location, dates, and hours of
operation;
(5) Proposed menu, food handling procedures,
including anticipated food volume and
sources;
(6) Food equipment list;
(7) Proposed water supply;
(8) Provisions for sewage and other waste
disposal; and
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(9) Any information necessary to ensure
compliance.
(e) The regulatory authority shall require documentation to
verify any provision of Rules .2665 through .2669 of this
Section.
(f) The regulatory authority may condition the permit to ensure
compliance with Rules .2665 through .2669 of this Section.
(g) Evaluations of temporary food establishments and
temporary food establishment commissaries shall be made as
often as necessary to ensure compliance. The regulatory
authority shall immediately suspend the permit for repeated
violations of priority items or priority foundation items.
(h) The permit shall be suspended or revoked immediately
pursuant to G.S. 130A-23(d).
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2666 TEMPORARY FOOD
ESTABLISHMENT FOOD HANDLING REQUIREMENTS
(a) All sources of food shall comply with Chapter 3 of the Food
Code as amended by Rule .2653.
(b) Raw meat, poultry, and fish shall be purchased in ready-to-cook
portions, except that cutting and skewering shall be
allowed where evaluation by the regulatory authority determines
sufficient preparation areas and food equipment are provided.
(c) Salads containing ingredients that are cooked and cooled
shall not be prepared in the temporary food establishment or
temporary food establishment commissary, but may be served.
(d) Shellstock and shucked shellfish shall comply with Chapter 3
of the Food Code as amended by Rule .2653.
(e) All food shall be protected in accordance with Chapter 3 of
the Food Code as amended by Rule .2653 and the following also
apply:
(1) The regulatory authority may approve food
preparation and storage for a temporary food
establishment at a permitted temporary food
establishment commissary or other permitted
food establishment;
(2) Temporary food establishment or temporary
food establishment commissary operations
shall not be conducted in any room or area
used for purposes not related to the temporary
food establishment or other permitted food
establishment;
(3) Food shall be secured in a manner to prevent
tampering and contamination at all times;
(4) Ready-to-eat food shall not be stored in direct
contact with ice; non-mechanical coolers must
be provided with a drainage port;
(5) All food shall be stored above the ground or
floor and arranged to prevent contamination of
foods;
(6) Potentially hazardous food (time/temperature
control for safety food) that has been heated at
the temporary food establishment or temporary
food establishment commissary shall not be
sold or held for use on subsequent days.
Approval may be granted to allow cooling and
reheating of potentially hazardous food
(time/temperature control for safety food) if
the food can be handled in accordance with the
rules of this Section; and
(7) The regulatory authority shall further limit the
food to be prepared or served, based on
methods of preparation and the adequacy of
facilities, equipment, utensils, and available
utilities.
(f) Food prepared at a previous event or potentially hazardous
food (time/temperature control for safety food) removed from
original packaging shall not be served at a subsequent event.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2667 TEMPORARY FOOD
ESTABLISHMENT EMPLOYEE REQUIREMENTS
(a) Food employees shall wear effective hair restraints, clean
outer clothing, and maintain good hygienic practices as specified
in Part 2-4 of the Food Code as amended by Rule .2652.
(b) Employees shall wash their hands in a handwashing sink
before starting work, after each visit to the toilet, and as often as
necessary to remove soil and contamination.
(c) Employees shall not use tobacco in any form or consume
food in food preparation, storage or serving areas, utensil
washing, or utensil storage areas.
(d) Employees may consume beverages in the food
establishment only if covered and consumed in a manner to
prevent contamination of food and food-contact surfaces.
(e) Employees shall comply with the requirements in Subpart 2-
201 of the Food Code as amended by Rule .2652.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2668 TEMPORARY FOOD
ESTABLISHMENT EQUIPMENT AND UTENSIL
REQUIREMENTS
(a) Equipment and utensils shall be kept clean and maintained in
good repair. Those surfaces which come in contact with food,
drink, or utensils shall comply with Parts 4-1 and 4-2 of the
Food Code as amended by Rule .2664.
(b) Equipment and utensils shall be cleaned, sanitized, stored,
and handled in accordance with Parts 4-6 and 4-7 of the Food
Code as amended by Rule .2654.
(c) When multi-use utensils other than eating and drinking
utensils are used, 3 basins of sufficient size to submerge, wash,
rinse, and sanitize utensils shall be provided. Other equivalent
products and procedures may be used in accordance with Part 4-
7 of the Food Code as amended by Rule .2654. At least 1
drainboard, table, or counter space shall be provided for air-drying.
(d) When multi-use eating and drinking utensils are used, a 3-
compartment sink of sufficient size to submerge, wash, rinse,
and sanitize utensils must be provided. Drainboards shall be
provided as specified in Section 4-301.13 of the Food Code as
amended by Rule .2654.
(e) Wash, rinse, and sanitizing solutions shall be maintained as
specified in Section 4-501.18 of the Food Code as amended by
Rule .2654.
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(f) A food preparation sink must be provided for washing
produce.
(g) Food shields or other effective barriers shall be installed in a
manner to protect food and food contact surfaces from
contamination.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2669 TEMPORARY FOOD
ESTABLISHMENT PHYSICAL REQUIREMENTS
(a) The temporary food establishment shall be located in an area
kept in a clean and sanitary condition. The arrangement of
temporary food establishments shall restrict public access to all
areas of the food establishment, except dining areas.
(b) For outdoor cooking, overhead protection shall be provided
such that all food, utensils, and equipment are protected. When
bulk foods such as roasts, shoulders, and briskets are cooked,
cooking equipment with attached lids, such as smokers, roasters,
and other cooking devices, provide sufficient cover for the food
being cooked. Food in individual servings such as hot dogs,
hamburgers, and meat kabobs shall have additional overhead
cover.
(c) Effective measures such as fans, screens, walls, or a
combination thereof, shall be provided to keep dust, insects,
rodents, animals, and other sources of potential contamination
out of the food establishment and shall comply with Paragraph
6-501.15(B) of the Food Code as amended by Rule .2656
regarding live animals.
(d) Indoor/outdoor carpeting, matting, tarps, or similar
nonabsorbent material is required as ground covering in the
absence of asphalt, concrete, grass, or other surfaces that control
dust or mud.
(e) The temporary food establishment and temporary food
establishment commissary shall be equipped with a handwashing
sink used only for employee handwashing. This facility shall
consist of at least a 2 gallon container with an unassisted free
flowing faucet such as a stopcock or turn spout, soap, single-use
towels, and a wastewater receptacle. Warm water shall be used
for handwashing.
(f) Water under pressure shall be provided as follows:
(1) The water supply used shall be in accordance
with 15A NCAC 18A .1700, 15A NCAC 18C,
or 02 NCAC 09C .0703;
(2) All potable water holding tanks, containers,
and hoses used to transport or store water at
the temporary food establishment shall be
drained, washed, rinsed, and sanitized;
(3) Containers and hoses used to store, haul, or
convey potable water shall be approved for
potable water use, shall not be used for any
other purpose, and shall be protected from
contamination. Potable water hoses and
containers shall be labeled; and
(4) Warm water shall be available and used for
cleaning.
(g) Wastewater shall be disposed in accordance with 15A NCAC
18A .1900 or 15A NCAC 02H .0200. Portable wastewater
containers may be used when the volume of potable water can be
determined by the dimensions of sinks, basins, and interim
storage containers and the portable wastewater containers are
sized to contain the wastewater volume generated. Wastewater
containers and hoses shall be labeled and not used for any other
purpose. Wastewater containers shall not be emptied into
waterways, storm drains, or on the ground.
(h) Employees must have access to toilet facilities that are kept
clean and in good repair.
(i) Garbage and refuse shall be collected and stored in garbage
containers with properly fitted lids. Nothing in this Rule shall
prohibit uncovered garbage containers in the food establishment
during periods of operation. Garbage and refuse shall be
removed as needed and disposed in a manner to prevent vermin
breeding and harborage. The premises shall be kept clean.
(j) Lighting shall comply with Section 6-202.11 of the Food
Code as amended by Rule .2656. Lighting is required for
nighttime operations.
(k) Temporary food establishments and temporary food
establishment commissaries shall remain connected to necessary
utilities at all times food is prepared, served, or stored in the
food establishment.
(l) Toxic materials shall be labeled, used, and stored to prevent
the contamination of food, equipment, utensils, linens, and
single-service articles and meet the provisions of Sections 7-
101.11 and 7-203.11 of the Food Code as amended by Rule
.2657.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2670 GENERAL REQUIREMENTS
FOR PUSHCARTS AND MOBILE FOOD UNITS
(a) A permit shall be issued by the regulatory authority which
inspects the commissary from which the pushcart or mobile food
unit is to operate, if the regulatory authority determines that the
pushcart or mobile food unit complies with the rules of this
Section. The permit shall be maintained on the pushcart or
mobile food unit and made available to the regulatory authority
upon request.
(b) The regulatory authority which issues the permit shall be
provided by the permit holder a list of counties and locations
where each pushcart or mobile food unit will operate.
(c) The pushcart or mobile food unit permit holder shall provide
the regulatory authority in each county in which food service
operations are proposed a list of locations where they will
operate. Such lists must be kept current.
(d) Prior to initiating food service operations in a particular
county, the operator of the pushcart or mobile food unit shall
submit to that particular county such carts or units for inspection
or reinspection to determine compliance with this Section.
(e) Pushcarts or mobile food units shall operate in conjunction
with a permitted commissary and shall report at least daily to the
commissary for supplies, cleaning, and servicing. Facilities, in
compliance with this Section, shall be provided at the
commissary for storage of all supplies. The pushcart shall also
be stored in an area that protects it from dirt, debris, vermin, and
other contamination. Water faucets used to supply water for
pushcarts or mobile food units shall be protected to prevent
contact with chemicals, splash, and other sources of
contamination. Solid waste storage and liquid waste disposal
facilities must also be provided on the commissary premises.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1462
(f) All food shall be obtained from sources that comply with
Chapter 3 of the Food Code as amended by Rule .2653.
(g) All potentially hazardous food (time/temperature control for
safety food) shall be maintained at temperatures as required in
Chapter 3 of the Food Code as amended by Rule .2653. A metal
stem-type thermometer accurate to 1C (2F) shall be available
to check food temperatures.
(h) Only single-service articles shall be used for serving
customers. Single-service articles shall be purchased only in
sanitary containers, shall be stored therein in a clean, dry place
until used, and shall be handled in a manner to prevent
contamination.
(i) All garbage and other solid waste shall be stored and disposed
in an approved manner.
(j) Employees shall wear effective hair restraints, clean outer
clothing, and maintain good hygienic practices as specified in
Part 2-4 of the Food Code as amended by Rule .2652.
(k) Employees shall comply with the requirements in Subpart 2-
201 of the Food Code as amended by Rule .2652.
(l) Equipment and utensils shall meet the requirements in Parts
4-1 and 4-2 of the Food Code as amended by Rule .2654.
(m) The pushcart or mobile food unit shall be kept clean and free
of flies, roaches, rodents, and other vermin.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2671 SPECIFIC REQUIREMENTS
FOR PUSHCARTS
(a) Only hot dogs shall be prepared, handled, or served from a
pushcart; however, food which has been prepared,
pre-portioned, and individually pre-wrapped at a food
establishment or commissary may be served from a pushcart.
(b) Food and utensils on the pushcart exposed to the public or to
dust or insects shall be protected by glass, or otherwise, on the
front, top, and ends, and exposed only as much as may be
necessary to permit the handling and serving of food.
(c) Toilet facilities, handwashing sinks, and running water are
not required. Single-service towels are required.
(d) All pre-wrapped potentially hazardous food
(time/temperature control for safety food) shall be maintained at
temperatures as required in Chapter 3 of the Food Code as
amended by Rule .2653 or as labeled on the food item. Each
pre-wrapped food item shall contain the name of the food
establishment at which it was prepared, the name of the food
item, and the time and date of expiration. The wrapper shall
enclose the food at all times but sealing is not required.
(e) Pre-portioned, individually pre-wrapped food that remains
after the specified time period has elapsed shall not be sold for
human consumption.
(f) Pushcarts shall not be provided with seating facilities.
(g) Pushcarts shall not be used for consumer self-service.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2672 SPECIFIC REQUIREMENTS
FOR MOBILE FOOD UNITS
(a) A mobile food unit shall be constructed and arranged so that
food, drink, utensils, and equipment will not be exposed to
insects, dust, and other contamination. Protection against flies
and other insects shall be provided by screening or by effective
use of fans. Where food or griddles are exposed to the public or
to dust or insects, they shall be protected by glass, or otherwise,
on the front, top, and ends, and exposed only as much as may be
necessary to permit the handling and serving of food.
(b) A mobile food unit shall have a potable water system under
pressure. The system shall furnish hot and cold water for all food
preparation, utensil cleaning, and handwashing. The water inlet
shall be located so that it will not be contaminated by waste
discharge, road dust, oil, or grease and it shall be kept capped
unless being filled.
(c) Water heating facilities shall be provided.
(d) A handwashing sink with hot and cold water, combination
supply faucet, soap, and single-service towels shall be provided.
(e) At least a 1-compartment sink shall be provided. The sink
shall be of sufficient size to submerge, wash, rinse, and sanitize
utensils and shall have splashback protection. Drainboards shall
be provided as specified in Section 4-301.13 of the Food Code
as amended by Rule .2654 to accommodate the drying of washed
utensils. However, in cases where no food is prepared on the
mobile food unit and all utensils are effectively cleaned at the
commissary, the equipment sink is not required.
(f) Sewage disposal must be provided either by means of an
approved sewage disposal system or approved sewage storage
tanks. Sewage storage tanks must be maintained in a manner so
as not to create a health hazard or nuisance and to prevent
contamination of food or water supply. Toilets are not required
on the unit. Liquid waste that results from the operation of a
mobile food unit shall be disposed in an approved sewage
disposal system or stored in a permanently installed sewage
storage tank that is of at least 15 percent larger capacity than the
water supply tank. Liquid waste shall not be discharged from the
sewage storage tank when the mobile food unit is in motion. All
connections on the vehicle for servicing mobile food unit waste
disposal facilities shall be of a different size or type than those
used for supplying potable water to the mobile food unit. The
waste connection shall be located lower than the water inlet
connection to preclude contamination of the potable water
system.
(g) A servicing area shall be established at a commissary for the
mobile food unit. Potable water servicing equipment shall be
installed, stored, and handled to protect the water and equipment
from contamination. The mobile food unit's sewage storage tank
shall be flushed and drained during servicing operation. All
sewage shall be discharged to an approved sewage disposal
system in accordance with 15A NCAC 18A .1900 or 15A
NCAC 02H .0200.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2673 CONGREGATE NUTRITION
SITES
Congregate nutrition sites shall comply with all requirements in
Rules .2650-.2662 of this Section with the following exceptions:
(1) Food preparation in a congregate nutrition site
shall be limited to reheating food prepared in a
food establishment or in a food processing
plant or preparation of food that does not
require cooking.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1463
(2) Congregate nutrition sites shall not prepare
any potentially hazardous food
(time/temperature control for safety food)
prior to the day of service.
(3) Potentially hazardous food (time/temperature
control for safety food) which has been heated
or reheated at the congregate nutrition site and
remains at the end of the day shall not be
served or placed in refrigeration to be used
another day.
(4) Food prepared in a private home may not be
used or offered for human consumption in a
congregate nutrition site.
(5) All food prepared or served in a congregate
nutrition site shall be consumed only on the
premises.
(6) Only single-service articles shall be used.
(7) Consumer self-service is prohibited except for
condiments in individual packages or in pour-type
or squeeze-type containers.
(8) Equipment in the congregate nutrition site
which is not certified or classified for
sanitation by an ANSI-accredited certification
program which is in good repair and operating
properly may be used. At least a
2-compartment sink shall be provided. The
sink shall be of sufficient size to submerge,
wash, rinse, and sanitize utensils. At least 1
drainboard, table, or counter space shall be
provided for air-drying.
(9) Garbage can liners are required for all garbage
receptacles unless the site has receptacle
cleaning facilities as specified in Section 5-
501.18 of the Food Code as amended by Rule
.2655.
(10) Water used for mop or receptacle cleaning
shall not be disposed in the utensil sink.
Wastewater from mopping, receptacle
cleaning, and other cleaning operations shall
be disposed in a service sink or another
approved manner in accordance with 15A
NCAC 18A .1900 or 15A NCAC 02H .0200.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2674 LIMITED FOOD
ESTABLISHMENTS
Limited food establishments shall comply with all the
requirements in Rules .2650-.2662 of this Section, except that
the following provisions apply in lieu of Rules .2654(2) and
.2659(a) and (b); Section 5-204.11(b) of the Food Code as
amended by Rule .2655, and Sections 8-201.11 and 8-201.12 of
the Food Code as amended by Rule .2658:
(1) The permit for a limited food establishment
shall be posted in a conspicuous place where it
can be readily seen by the public at all times.
Permits for limited food establishments shall
expire on December 31 of each year. A new
permit from the regulatory authority shall be
obtained before the limited food establishment
shall be allowed to operate each year.
Transitional permits shall not be issued.
(2) The permit application shall be submitted to
the local health department at least 30 days
prior to construction or commencing
operation. The permit application shall include
a proposal for review and approval which
includes a menu, plans, and specifications for
the proposed limited food establishment, and
location and dates of operation.
(3) Limited food establishments shall not prepare
any potentially hazardous food
(time/temperature control for safety food)
prior to the day of sale.
(4) Potentially hazardous food (time/temperature
control for safety food) which has been heated
at the limited food establishment and remains
at the end of the day shall not be served or
placed in refrigeration to be used another day.
(5) Food prepared in a private home may not be
used or offered for human consumption in a
limited food establishment.
(6) All meats, poultry, and fish shall be purchased
in a pre-portioned and ready-to-cook form.
(7) Equipment in the limited food establishment
which is not certified or classified for
sanitation by an ANSI-accredited certificate
program which is in good repair and operating
properly may be used. At least a
2-compartment sink shall be provided. The
sink shall be of sufficient size to submerge,
wash, rinse, and sanitize utensils and shall
have splashback protection. At least 1
drainboard, table, or counter space shall be
provided for air-drying.
(8) Only single-service articles shall be used.
(9) Consumer self-service is prohibited except for
condiments in individual packages or in pour-type
or squeeze-type containers.
(10) Limited food establishments may prepare food
in accordance with Rule .2669(b) of this
Section.
(11) Floors, walls, and ceilings of limited food
establishments shall meet the requirements of
this Section, except those limited food
establishments preparing food in accordance
with Rule .2669(b). Limited food
establishments shall use dustless methods of
floor cleaning and all, except emergency floor
cleaning, shall be done during those periods
when the least amount of food and drink is
exposed, such as after closing, or between
meals.
(12) All areas in which food is handled, prepared,
or in which utensils are washed, shall be
provided with artificial lighting that complies
with Section 6-202.11 of the Food Code as
amended by Rule .2656.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1464
(13) A handwashing sink shall be provided in food
service areas for use by employees only.
(14) Toilet facilities shall be provided for use by
employees. Public toilet facilities provided on
the grounds of the facility where the associated
amateur athletic event is taking place are
acceptable. Toilet facilities for the public are
not required.
Authority G.S. 130A-248; S.L. 2011-394, Section

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 26 ● ISSUE 18 ● Pages 1434 - 1475
March 15, 2012
I. EXECUTIVE ORDERS
Executive Order No. 115 .................................................................................... 1434 – 1435
Executive Order No. 116 .................................................................................... 1436 – 1437
II. IN ADDITION
Decision Letters on "Changes Affecting Voting" from US Attorney General ... 1438 – 1439
III. PROPOSED RULES
Commerce, Department of
Federal Tax Reform Allocation Committee .................................................... 1440 – 1441
Environment and Natural Resources, Department of
Department ...................................................................................................... 1446 – 1448
Public Health, Commission for ....................................................................... 1448 – 1464
Insurance, Department of
Commissioner of Insurance............................................................................. 1441 – 1446
Occupational Licensing Boards and Commissions
Funeral Service, Board of ............................................................................... 1468 – 1469
Medical Board ................................................................................................. 1464 – 1468
IV. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1470 – 1475
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 431-3000
Fax (919) 431-3104
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Vojtko, Publications Coordinator
Julie Edwards, Editorial Assistant
Tammara Chalmers, Editorial Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Amy Bason amy.bason@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2012 – December 2012
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
26:13 01/03/12 12/08/11 01/18/12 03/05/12 03/20/12 05/01/12 05/16/12 09/29/12
26:14 01/17/12 12/21/11 02/01/12 03/19/12 03/20/12 05/01/12 05/16/12 10/13/12
26:15 02/01/12 01/10/12 02/16/12 04/02/12 04/20/12 06/01/12 01/30/13 10/28/12
26:16 02/15/12 01/25/12 03/01/12 04/16/12 04/20/12 06/01/12 01/30/13 11/11/12
26:17 03/01/12 02/09/12 03/16/12 04/30/12 05/21/12 07/01/12 01/30/13 11/26/12
26:18 03/15/12 02/23/12 03/30/12 05/14/12 05/21/12 07/01/12 01/30/13 12/10/12
26:19 04/02/12 03/12/12 04/17/12 06/01/12 06/20/12 08/01/12 01/30/13 12/28/12
26:20 04/16/12 03/23/12 05/01/12 06/15/12 06/20/12 08/01/12 01/30/13 01/11/13
26:21 05/01/12 04/10/12 05/16/12 07/02/12 07/20/12 09/01/12 01/30/13 01/26/13
26:22 05/15/12 04/24/12 05/30/12 07/16/12 07/20/12 09/01/12 01/30/13 02/09/13
26:23 06/01/12 05/10/12 06/16/12 07/31/12 08/20/12 10/01/12 01/30/13 02/26/13
26:24 06/15/12 05/24/12 06/30/12 08/14/12 08/20/12 10/01/12 01/30/13 03/12/13
27:01 07/02/12 06/11/12 07/17/12 08/31/12 09/20/12 11/01/12 01/30/13 03/29/13
27:02 07/16/12 06/22/12 07/31/12 09/14/12 09/20/12 11/01/12 01/30/13 04/12/13
27:03 08/01/12 07/11/12 08/16/12 10/01/12 10/22/12 12/01/12 01/30/13 04/28/13
27:04 08/15/12 07/25/12 08/30/12 10/15/12 10/22/12 12/01/12 01/30/13 05/12/13
27:05 09/04/12 08/13/12 09/19/12 11/05/12 11/20/12 01/01/13 01/30/13 06/01/13
27:06 09/17/12 08/24/12 10/02/12 11/16/12 11/20/12 01/01/13 01/30/13 06/14/13
27:07 10/01/12 09/10/12 10/16/12 11/30/12 12/20/12 02/01/13 05/2014 06/28/13
27:08 10/15/12 09/24/12 10/30/12 12/14/12 12/20/12 02/01/13 05/2014 07/12/13
27:09 11/01/12 10/11/12 11/16/12 12/31/12 01/22/13 03/01/13 05/2014 07/29/13
27:10 11/15/12 10/24/12 11/30/12 01/14/13 01/22/13 03/01/13 05/2014 08/12/13
27:11 12/03/12 11/07/12 12/18/12 02/01/13 02/20/13 04/01/13 05/2014 08/30/13
27:12 12/17/12 11/26/12 01/01/13 02/15/13 02/20/13 04/01/13 05/2014 09/13/13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1434
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1435
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1436
EXECUTIVE ORDERS
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1437
IN ADDITION
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1438
IN ADDITION
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1439
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1440
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 04 – DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Federal Tax Reform Allocation Committee (TRAC) intends
to adopt the rule citied as 04 NCAC 01H .0501.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.nccommerce.com/energy/recovery-information
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: March 30, 2012
Time: 10:00-11:00 a.m.
Location: Department of Commerce, Fourth Floor Board
Room, 301 N. Wilmington Street, Raleigh, NC 27601
Reason for Proposed Action: In 2008, the U.S. Congress
authorized Qualified Energy Conservation Bonds (QECBs) to
finance a wide range of energy conservation measures,
including construction, and allowed a maximum nationwide
volume cap of $800 million. In February of 2009, through the
American Recovery and Reinvestment Act (ARRA), Congress
increased the cap to $3.2 billion, which was then to be allocated
to each state based on population. The total allocation for
North Carolina is $95,677,000 in QECB issuing authority. The
TRAC has temporary rules in place that allow the TRAC to
allocate QECB capacity to eligible issuers within the State to
that North Carolina's QECB capacity can be fully utilized.
However, these temporary rules are due to expire on June 30,
2012. Therefore, it is essential that the TRAC have permanent
rules in place so that the TRAC can continue to allocate the
QECB capacity without interruption.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing is being held where interested
persons can object to the proposed rule. Interested persons may
also object through written comment to the agency.
Comments may be submitted to: Mark Poole, Commerce
Finance Center, 4301 Mail Service Center, Raleigh, NC 27699-
4301, phone (919)733-4151
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM: 02/13/12
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01H - PRIVATE ACTIVITY BOND
VOLUME CAPACITY PROGRAM
SECTION .0500 - QUALIFIED ENERGY
CONSERVATION BONDS
04 NCAC 01H .0501 PROCEDURES AND CRITERIA
FOR ALLOCATION OF QUALIFIED ENERGY
CONSERVATION BONDS
(a) The North Carolina Tax Reform Allocation Committee (the
"Committee") shall allocate Qualified Energy Conservation
Bond ("QECB") capacity to entities eligible to issue the bonds
under 26 U.S.C.S. 54D as follows:
(1) To "large local governments," as the term is
used in 26 U.S.C.S. 54D(e)(2) in the amounts
and manner as directed by the United States
Internal Revenue Service ("IRS") in 26
U.S.C.S. 54D and all relevant implementing
notices provided by the IRS (including IRS
Notice 2009-29), as modified, amended or
supplemented. For purposes of calculating the
populations of local governments to determine
which constitutes a "large local government,"
the Committee shall use population estimates
as of July 1, 2007, as directed by the IRS.
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26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1441
(2) To "Indian tribal governments," as the term is
used in 26 U.S.C.S. 54D(h) in the amounts as
directed by the IRS in 26 U.S.C.S. 54D and
relevant implementing notices provided by the
IRS (including IRS Notice 2009-29), as
modified, amended or supplemented.
(b) Following the allocations described in Paragraph (a) of this
Rule, the Committee shall allocate the remaining QECB capacity
to other issuers. The allocation shall be made by the Committee
upon completed application by an issuer, and after consideration
of the following factors:
(1) The ability of the State to ensure that at least
70 percent of the State's allocation is used for
government projects, and no more than 30
percent for projects considered QECB private
activity bonds under IRS rules, regulations and
guidelines;
(2) The extent to which the project constitutes an
eligible conservation purpose under 26
U.S.C.S. 54D and all relevant implementing
notices provided by the IRS (including IRS
Notice 2009-29), as may be modified,
amended or supplemented;
(3) The extent to which the project demonstrates
the potential to directly conserve energy;
(4) The extent to which the project supports the
development or implementation of innovative
energy conservation technology;
(5) The extent to which the project uses renewable
resources to produce energy;
(6) The number of citizens benefiting from the
project;
(7) The estimated number of jobs to be produced
by the projects (for private activity allocations)
and the amount of QECB authority per job
produced;
(8) The readiness of the project to proceed;
(9) The certainty of the issuer using the allocation
within the estimated timelines;
(10) The amount of other public and private
funding leveraged by the QECB allocation;
(11) The amount of local community support for
the project;
(12) The best interests of the State of North
Carolina with regard to economic
development, energy conservation, green
initiatives and the general prosperity of the
State;
(13) Whether the unit of local government is in
competition with another state for project
benefits such as jobs and tax base;
(14) Whether the availability of the allocation is a
crucial part of attracting a new company or
keeping an existing company in place;
(15) Whether the requested allocation will benefit a
project for which an eligible issuer is already
issuing QECBs;
(16) The ability of the unit of local government or
company benefiting from the QECB to obtain
financing and close the issue in a timely
manner, including demonstration of a
commitment from a bank or other financial
institution to purchase or underwrite the
QECBs;
(17) The total amount of capacity available to the
Committee for allocation in relation to the
total number of pending requests for
allocation;
(18) The tier status of the county in which the
project is to be located, as defined in G.S.
143B-437.08; and
(19) The geographic location of the project in light
of the location of other projects benefitting
from QECB capacity.
(c) If so required by G.S. Chapter 159 or G.S. 160A-20, local
governments shall coordinate issuance of QECBs with and
through the North Carolina Local Government Commission (the
"LGC") in the Office of the North Carolina State Treasurer and
shall obtain approval from the LGC for QECB issuance.
(d) Entities allocated QECB capacity by the Committee and
entities who issue QECBs shall ensure compliance with all
federal and state laws, rules, regulations and requirements
applicable to the allocation or issue.
(e) Entities receiving an allocation under Subparagraph (a)(1) of
this Rule ("large local governments" and "Indian tribal
governments") may waive or reallocate to the State of North
Carolina all or a portion of their allocation. Upon the State's
receipt of any additional QECB capacity through any waiver or
reallocation, the Committee shall allocate the capacity to eligible
issuers in the manner described in Subparagraph (a)(2) this Rule.
(f) To ensure timely use of any QECB allocation, the
Committee shall attach to an allocation of capacity made under
Paragraph (b) of this Rule contingencies relating to a time
deadline for issuance of the QECBs pursuant to the allocated
capacity and contingencies limiting the use of the allocated
QECB capacity for public or private activity bonds.
Authority G.S. 143-433.6(d); 143-433.8; 143-433.9(a); 150B-
21.1B; S.L. 2009-140; S.L. 2009-475.
TITLE 11 – DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commissioner of Insurance intends to amend the rules cited
as 11 NCAC 04 .0116, .0313, .0319, .0417, .0430, .0432; and
repeal the rules cited as 11 NCAC 01 .0603; 06A .0806; 10
.0714; 12 .0325, .0545, .0560, .1306; 14 .0413-.0414, .0418-
.0426, .0432, .0501.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.ncdoi.com/LS/
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: April 13, 2012
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26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1442
Time: 10:00 a.m.
Location: 430 N. Salisbury Street, 3rd Floor Hearing Room,
Raleigh, NC 27603
Reason for Proposed Action:
11 NCAC 04 .0116 – This Rule is being amended to update the
current mailing address and phone numbers for the NC
Department of Insurance, Consumer Services Division.
11 NCAC 04 .0313 – To delete Item (1) House Confinement
because it is in direct conflict with 11 NCAC 12 .0313. To delete
Item (2) because it is superseded by G.S. 58-51-130(h).
11 NCAC 04 .0319 – This Rule is being amended to bring
current as per G.S. 58-3-225.
11 NCAC 04 .0417 – To update the language to allow for an
additional option.
11 NCAC 04 .0430 – To update the methods for proof of mailing
certificates.
11 NCAC 04 .0432 – To update and to be consistent with 11
NCAC 19 .0102 (Market Regulations Division) which requires
companies to maintain records for five years.
11 NCAC 01 .0603; 06A .0806; 10 .0714; 12 .0325, .0545,
.0560, .1306; 14 .0413-.0414, .0418-.0426, .0432, .0501 – These
rules are no longer necessary and are redundant as per the
requirement in 150B-19.1(b).
Procedure by which a person can object to the agency on a
proposed rule: The Department of Insurance will accept
written objections to these rules until the expiration of the
comment period on May 14, 2012.
Comments may be submitted to: Karen Waddell, 1201 Mail
Service Center, Raleigh, NC 27699-1201; phone (919) 733-
4529; email karen.waddell@ncdoi.gov
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SECTION .0600 - GENERAL DEPARTMENTAL
POLICIES
11 NCAC 01 .0603 FACSIMILE
COUNTERSIGNATURE NOT VALID
If a countersignature of an insurance policy is required pursuant
to G.S. 58-33-60, the use by an agent of a facsimile signature for
countersignature shall not constitute a legal signature and such
facsimile countersignature is not valid.
Authority G.S. 58-2-40; 58-33-30(i); 58-33-60.
CHAPTER 04 - CONSUMER SERVICES DIVISION
SECTION .0100 - GENERAL PROVISIONS
11 NCAC 04 .0116 INQUIRIES AND
INFORMATION
The Division maintains facilities and personnel to receive
inquiries and complaints by telephone, letter or personal visit.
The telephone numbers for the Division are toll-free 1-800-662-
7777 or 1-800-546-5664 and 1-919-807-6750. number of the
Division is (919) 733-2032. The mailing address of the Division
is: North Carolina Department of Insurance, Post Office Box
26387, 1201 Mail Service Center, Raleigh, North Carolina
27611, 27699-1201; (Attention: Consumer Services Division).
The street address of the Division is: Room 3040, Dobbs
Building, 430 North Salisbury Street, Raleigh, North Carolina.
Authority G.S. 58-2-25; 58-2-40.
SECTION .0300 - LIFE: ACCIDENT AND HEALTH
11 NCAC 04 .0313 PROVISIONS OF CONTRACTS
In order to prevent unfair discrimination among insureds, the
following phrases and provisions commonly found in life,
accident, health and disability contracts, if not expressly defined
in such contracts, shall be construed by the Department in the
following manner:
(1) House Confinement. As used in disability
contracts, "house confinement" shall be
considered a description of the extent of illness
rather than a restriction of the insured's
conduct or activities. The insured's
participation in activities which are considered
by his physician to be for therapeutic rather
than for business or personal reasons shall not
prevent recovery under such disability
contracts.
(2) Offsets Against Social Security Awards. As
used in disability contracts, "offsets against
social security awards" shall be construed as
permitting the insurer to offset only the
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26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1443
amount of the original social security award
and not subsequent cost of living increases.
(3)(1) Regular Care and Attendance of a Physician.
As used in life, accident and health and
disability policies, "regular care and
attendance of a physician" shall not be
construed to require insureds to see or be
under the care of a physician on a regular basis
if it can be shown that the insured has reached
his maximum point of recovery yet is still
disabled under the terms of the insurance
contract. This requirement shall not, however,
restrict the right of the insurer at its own
expense, to periodically examine or cause to
have examined the insured according to the
terms of the contract of insurance.
(4)(2) Premature Baby. A premature baby shall not
be considered a well baby. The protection
afforded newborn infants under G.S. 58-51-30
shall be provided to premature babies.
(5)(3) Medical Necessity. "Medical necessity" shall
be construed as including treatment which
restores not only the insured's physical but also
his mental well-being. As used in this Section,
"restoration of mental well-being" does not
require coverage of psychiatric disorders when
such disorders are excluded under the express
terms of the contract.
(6)(4) Sound Health. The question, "Are you in
sound health?" shall be considered ambiguous,
and therefore answers to that question on an
insurance application shall not be used as the
basis for rescission of a policy or denial of a
claim.
Authority G.S. 58-2-40; 58-3-150; 58-51-1; 58-51-130; 58-63-
15; 58-63-65; 58-65-1; 58-65-40; 58-65-95; 58-67-65; 58-67-
150.
11 NCAC 04 .0319 CLAIMS PRACTICES: LIFE:
ACCIDENT AND HEALTH INSURANCE
The Commissioner shall consider as prima facie violative of
G.S. 58-63-15(11) the failure by an insurer to adhere to the
following procedures concerning settlement of life, accident,
health and disability claims when such failure is so frequent as to
indicate a general business practice:
(1) Examining Physician's Opinion. When the
patient's health is in question, an insurer
should give greater weight to the opinion of a
physician who has examined the patient than
to the opinion of a physician who has not
examined the patient and whose opinion is
based solely on a review of the examining
physician's notes or reports. As used in this
Section, "examination of the patient" shall
include the interpretation by a specialist of the
results of diagnostic tests performed on the
patient by others.
(2) Settlement Offers. Initial offers of settlement
or compromise made by an insurer or its
representative shall remain open for a
reasonable period of time.
(3) Multiple Health Impairments. When an
insured is confined to the hospital with
multiple health impairments some of which
may be excluded from coverage, the insurer or
its representative shall make pro rata payments
where treatment for excluded conditions can
be separated.
(4) Assignment of Benefits. If an accident, health
or disability contract does not prohibit
assignment of benefits and a proper
assignment (including notice to the insurer
prior to the payment of the claim) is made, the
insurer shall honor the assignment even though
it may have erroneously paid the insured.
Submission of a completed claims form G33H
and its successor(s) indicating that an
assignment is on file shall be treated as though
it were submission of the actual assignment.
(5) Claim Status Reports. Health insurance claims
subject to G.S. 58-3-225 shall be processed in
accordance with the provisions of the statute.
If benefits claimed under an accident, health,
or disability contract have not been paid within
45 days after receipt of the initial claim by the
insurer, the insurer shall at that time mail a
claim status report to the insured.
Authority G.S. 58-2-40; 58-3-225; 58-63-15; 58-63-65; 58-65-1;
58-65-40; 58-65-125; 58-67-65; 58-67-150.
SECTION .0400 - PROPERTY AND LIABILITY
11 NCAC 04 .0417 DRIVE-IN CLAIM SERVICE
FACILITIES
No insurer shall require any claimant to use a drive-in claim
service operated by the insurer. The claimant's voluntary
utilization of a drive-in claim service or preferred repair shop
shall not prejudice the right of either party to obtain independent
appraisals and negotiate settlement on the basis of such
appraisals.
Authority G.S. 58-2-40; 58-63-65.
11 NCAC 04 .0430 PROOF OF MAILING;
AUTOMOBILE INSURANCE
As used in G.S. 58-36-85, "proof of mailing" means a certificate
issued by and bearing the date stamp of the United States Postal
Service. Service or an official United States Postal Service
tracking number or similar proof of mailing.
Authority G.S. 58-2-40; 58-36-85.
11 NCAC 04 .0432 REFUND OF EXCESS PREMIUM
ON SCHEDULED ITEMS
PROPOSED RULES
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1444
If an insured has any scheduled item covered by a homeowner's
or personal inland marine insurance policy, and that item is
replaced for less than the scheduled amount of coverage, the
insurer shall refund the insured the difference in premium
charged between the scheduled amount of coverage and the
actual amount of the loss paid by the insurer, if the refund per
policy term is greater than five dollars ($5.00). Any refund shall
be computed from the date of issuance of the policy or three five
y ears, whichever is less.
Authority G.S. 58-2-40; 58-43-10; 58-63-65.
CHAPTER 06 - AGENT SERVICES DIVISION
SUBCHAPTER 06A - AGENT SERVICES DIVISION
SECTION .0800 - CONTINUING EDUCATION
11 NCAC 06A .0806 ATTENDANCE
(a) If six or fewer ICECs are assigned to a course, the licensee
shall attend 100 percent of the course to receive any ICECs.
(b) If more than six ICECs are assigned to a course, and the
licensee passes the exam and attends at least 80 percent of the
course, the licensee shall receive 100 percent of the ICECs
assigned to the course.
(c) If more than six ICECs are assigned to a course, and the
licensee does not pass the exam but attends at least 80 percent of
the course, the licensee shall receive 80 percent of the ICECs
assigned to the course.
(d) An instructor may conduct a class with up to 30 students
with no additional assistance. For classes with attendance
exceeding 30 students, one assistant to the instructor is required
for each additional 50 students or any portion thereof. Each
assistant shall be physically present in the classroom during the
instructor's presentation.
Authority G.S. 58-2-40; 58-33-130.
CHAPTER 10 - PROPERTY AND CASUALTY DIVISION
SECTION .0700 - INSURANCE IN UNLICENSED
FOREIGN AND ALIEN COMPANIES
11 NCAC 10 .0714 FORM:
INSTRUCTIONS/REQUIREMENTS/SURPLUS LINES
COMPANY
The "Instructions and Requirements for Obtaining a License to
Represent a Surplus Lines Company and the Procedure to be
Used for Placing Business" form is an information sheet setting
forth requirements for obtaining an agent's license and obtaining
approval for placing insurance in surplus lines insurers; which is
sent by this department to applicants upon request and includes a
description of the procedures for placing insurance in surplus
lines companies and other information.
Authority G.S. 58-2-40; 58-21-65.
CHAPTER 12 - LIFE AND HEALTH DIVISION
SECTION .0300 - GENERAL PROVISIONS
11 NCAC 12 .0325 OCCUPATIONAL INJURIES OR
DISEASES
Health insurance policies may not exclude coverage for work-related
injuries or sickness unless benefits are paid or payable
for such injuries or sickness under Chapter 97 of the General
Statutes of North Carolina.
Authority G.S. 58-2-40; 58-3-150; 58-51-1; 58-51-85; 58-51-95.
SECTION .0500 - ACCIDENT AND HEALTH: GENERAL
NATURE
11 NCAC 12 .0545 OFFSET OF INCREASED
SOCIAL SECURITY: GROUP DISABILITY
No policy of group disability income insurance which integrates
benefits shall provide that the amount of any disability benefit
actually paid to the disabled person shall be reduced by changes
in the level of social security benefits resulting either from
changes in the social security law or in cost of living adjustments
which become effective after the first day for which the
disability benefits become payable.
Authority G.S. 58-2-40; 58-51-1; 58-65-1; 58-65-40.
11 NCAC 12 .0560 UNIFORM CLAIM FORMS
(a) As used in this Rule, "health benefit plan" has the same
meaning as in G.S. 58-3-171(c).
(b) On and after January 1, 1994, all claims submitted by
institutional health care providers to health benefit plans shall be
submitted on the HCFA 1450 (UB 92), or a substantively
similar, claim form. On and after January 1, 1994, all claims
submitted by noninstitutional health care providers to health
benefit plans shall be submitted on the HCFA 1500, or a
substantively similar, claim form.
Authority G.S. 58-2-40; 58-3-171.
SECTION .1300 - SMALL EMPLOYER GROUP HEALTH
COVERAGE
11 NCAC 12 .1306 REINSURANCE POOL
(a) Reinsurance is available for coverage of eligible employees,
their dependents, or the entire small employer group under any
health benefit plan issued as new business by a reinsuring carrier
to an eligible small employer on and after August 14, 1992.
Reinsurance is also available to eligible small employers who
were refused coverage between January 1, 1992 and August 13,
1992, and were subsequently issued a statutory plan.
(b) Subject to any other restrictions of this Section, a reinsuring
carrier may reinsure an eligible employee, an eligible employee's
dependent, or a small employer group who has insurance
coverage under any health benefit plan subject to the Act.
(c) No carrier or producer shall disclose to insureds that their
coverage is reinsured by the Pool.
(d) A reinsuring carrier shall apply for reinsurance within 60
days after the effective date of coverage. A reinsuring carrier's
decision to reinsure a risk shall be based on the review of
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26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1445
underwriting taken at the time of application. The decision may
not be based on the small employer group's claims that have
accrued since the effective date of coverage.
(e) Reinsurance coverage may remain in effect, in the reinsuring
carrier's and the Pool's discretion, as long as the reinsured
coverage remains in effect. When the reinsured coverage
terminates, reinsurance will be terminated.
(f) A reinsuring carrier may terminate reinsurance on an
individual or a group without terminating the reinsured
coverage; and that reinsuring carrier shall not thereafter apply
for reinsurance for the person or persons covered.
(g) A reinsuring carrier may reinsure a previously-declined
individual upon enrollment in a health benefit plan or within 60
days after that enrollment, subject to any restrictions of this
Section.
(h) Any reinsuring carrier whose health benefit plan also covers
extra eligibles may not reinsure the coverage of those extra
eligibles.
(i) Any new entrant in a health benefit plan may be reinsured on
the effective date of his or her coverage but no later than 60 days
after that date, subject to any other restrictions of this Section.
Authority G.S. 58-2-40(1); 58-50-130(b)(4); 58-50-150(a); 58-
50-150(f)(5); 58-50-150(g).
CHAPTER 14 - ADMISSION REQUIREMENTS
SECTION .0400 - DESCRIPTION OF FORMS
11 NCAC 14 .0413 ADMISSION DATA
GUIDELINES
The Admission Data Guidelines is a packet of information
provided to insurance companies proposing to make an
application for an initial license to transact insurance business in
North Carolina. The form contains basic admission
requirements and procedures for initiating an application for
admission.
Authority G.S. 58-16-5.
11 NCAC 14 .0414 CHECK SHEET AND ANALYSIS
OF APPLICATION FOR ADMISSION
The Check Sheet and Analysis of Application for Admission is a
form used in the application process for listing the items to be
submitted by an applicant insurance company for review. The
form includes the applicant company name and address, all
items to be submitted and other pertinent information.
Authority G.S. 58-6-5; 58-7-45; 58-7-75; 58-7-80.
11 NCAC 14 .0418 STANDARD QUESTIONS FOR
APPLICANT INSURANCE CO.
The Standard Questions for Applicant Insurance Companies is a
form used to obtain basic information on the current operations
of an applicant insurance company by asking a series of general
questions.
Authority G.S. 58-16-5.
11 NCAC 14 .0419 MARKETING QUESTIONS FOR
APPLICANT LIFE INSURANCE CO.
The Marketing Questions for Applicant Life Insurance
Companies is a form used to obtain specific information on the
marketing aspects of an applicant life insurance company by
asking a series of questions pertaining to its proposed operations
in North Carolina.
Authority G.S. 58-16-5.
11 NCAC 14 .0420 MARKETING QUESTIONS FOR
APPLICANT FIRE/CASUALTY INSURANCE CO.
The Marketing Questions for Applicant Fire and Casualty
Insurance Companies is a form used to obtain specific
information on the marketing aspects of an applicant fire and
casualty insurance company by asking a series of questions
pertaining to its proposed operations in North Carolina.
Authority G.S. 58-16-5.
11 NCAC 14 .0421 UNCONDITIONAL GUARANTY
The Unconditional Guaranty is a form used by an applicant
insurance company, that does not satisfy the successful
operations admission requirement, to request a waiver of that
requirement by having a qualified affiliate guarantee to maintain
the capital and surplus of the applicant company at or above the
admission requirements of North Carolina for at least three
years. This form is a legal document committing the affiliate to
carry out such a guarantee.
Authority G.S. 58-16-5(2).
11 NCAC 14 .0422 CORPORATE RESOLUTION OF
GUARANTOR
The Corporate Resolution of Guarantor is a form used by an
applicant insurance company setting forth the required resolution
by the board of directors of a qualified affiliate to guarantee to
maintain the capital and surplus of the applicant company at or
above the admission requirements of North Carolina when a
waiver of the successful operations admission requirement is
requested.
Authority G.S. 58-16-5(2).
11 NCAC 14 .0423 ELIGIBILITY REQUIREMENTS
FOR SURPLUS LINES INSURANCE CO.
The Eligibility Requirements for Surplus Lines Insurance
Companies is a form provided to insurance companies proposing
to become eligible for the writing of surplus lines insurance in
North Carolina. The form contains the basic requirements for
such eligibility.
Authority G.S. 58-21-20.
11 NCAC 14 .0424 FILING REQUIREMENTS FOR
SURPLUS LINES INSURANCE CO.
The Filing Requirements for Surplus Lines Insurance Companies
is a form provided to insurance companies proposing to become
eligible for the writing of surplus lines insurance in North
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1446
Carolina. The form contains the materials to be filed for review
to determine eligibility.
Authority G.S. 58-21-20.
11 NCAC 14 .0425 BULLETIN 87-L-7
Bulletin 87-L-7 contains general requirements for purchasing
groups seeking to operate in North Carolina under the federal
(15 U.S.C. § 3901 et seq.) and North Carolina (G.S. 58-22-1 et
seq.) risk retention laws.
Authority G.S. 58-22-45(a).
11 NCAC 14 .0426 BULLETIN 87-L-6
Bulletin 87-L-6 contains policy form and rate filing
requirements for purchasing groups procuring insurance under
the federal and North Carolina risk retention laws from property
and casualty companies licensed in North Carolina.
Authority G.S. 58-40-30; 58-41-50.
11 NCAC 14 .0432 APPLICATION FOR LICENSE:
INSURANCE COMPANY
The application for license is a form used by an insurance
company to request authority to transact specific lines of
insurance business in North Carolina. This form is used for
initial authority by each applicant insurance company and for an
annual renewal license by each licensed insurance company.
The form includes the company's name, company's address,
president and secretary of the company, a schedule of license
fees, and the lines of authority being requested.
Authority G.S. 58-2-40; 58-7-40; 58-16-5.
SECTION .0500 - ADMISSION OF A FOREIGN OR
ALIEN INSURANCE COMPANY
11 NCAC 14 .0501 APPLICATION FORMS
In addition to any information required pursuant to G.S. 58-16-5,
a foreign insurance company applying for admission to do
business in North Carolina shall execute and submit to the
Commissioner as appropriate the forms described in 11 NCAC
14 .0409 through .0422. The Commissioner shall accept
applications for admission that are filed pursuant to the uniform
certificate of authority application process designed and made
available by the National Association of Insurance
Commissioners.
Authority G.S. 58-2-40; 58-16-5.
TITLE 15A– DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Environment and Natural Resources intends
to repeal the rules cited as 15 NCAC 01A .0101-.0103; 01B
.0101, .0201-.0204, .0301-.0303, .0401-.0402; 01G .0201-.0207,
.0301-.0305; 01J .1201, .1301-.1303, .1401-.1402, .1501, .1601-
.1602, .1701, .1801, .1901-.1902, .2001-.2003, .2101, .2201;
01K .0101-.0103, .0201-.0202, .0301-.0305, .0401-.0404.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://portal.ncdenr.org/web/guest/rules
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: April 3, 2012
Time: 6:00 p.m.
Location: NC DENR, Green Square Building, Training Room
#1210, 217 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
15A NCAC 01A– Contact information is located in other
directories and websites
15A NCAC 01B .0100 & .0200 – Duplicative of Administrative
Procedures Act
15A NCAC 01B .0300 – Duplicative of North Carolina
Department of Administration requirements
15A NCAC 01B .0400 – Duplicative of statutory requirements
15A NCAC 01G .0200 & .0300 – Program concluded
15A NCAC 01J – Establish consistency within the Water
Infrastructure Fund accounts
15A NCAC 01K – Program concluded
Procedure by which a person can object to the agency on a
proposed rule: If you have any objections to the proposed
rules, please mail a letter with your specific reasons to: Mary
Penny Thompson, General Counsel & Assistant Secretary,
Secretary's Office, 1601 Mail Service Center, Raleigh, NC
27699-1601
Comments may be submitted to: Mary Penny Thompson,
1601 Mail Service Center, Raleigh, NC 27699-1601
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1447
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
Note: The Codifier of Rules has determined that publication of
the complete text of these rules proposed to be repealed is
impractical (G.S. 150B-17(b)).
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01A - GENERAL ORGANIZATION
SECTION .0100 - GENERAL
15A NCAC 01A .0101 DEPARTMENT HEAD
15A NCAC 01A .0102 HOW TO CONTACT THE
DEPARTMENT
15A NCAC 01A .0103 COUNCILS AND COMMITTEES
Authority G.S. 143A-11; 143B-279.1.
SUBCHAPTER 01B - GENERAL ADMINISTRATION
SECTION .0100 - RULEMAKING
15A NCAC 01B .0101 MODEL RULES
Authority G.S. 143B-10(j); 150B-11; 150B-14(c).
SECTION .0200 - CONTESTED CASE HEARING
PROCEDURES
15A NCAC 01B .0201 DEFINITIONS
15A NCAC 01B .0202 AVAILABILITY OF
CONTESTED CASE HEARING
15A NCAC 01B .0203 REQUEST FOR CONTESTED
CASE HEARING
15A NCAC 01B .0204 FINAL AGENCY DECISION IN
CONTESTED CASE PROCEEDINGS
Authority G.S. 143B-10; 150B-2(2); 150B-11; 150B-23(a);
150B-36.
SECTION .0300 - PURCHASING AND CONTRACTING
15A NCAC 01B .0301 SCOPE OF SECTION
15A NCAC 01B .0302 DEFINITIONS
Authority G.S. 143B-10.
15A NCAC 01B .0303 CONCESSION CONTRACTS
Authority G.S. 143B-10; 143-49(2),(3),(4); 143-53; 143B-276.
SECTION .0400 - PUBLIC RECORDS
15A NCAC 01B .0401 DEFINITIONS
15A NCAC 01B .0402 PUBLIC ACCESS
Authority G.S. 132-1; 132-1.1; 132-2; 132-6; 132-9; 143B-10(j);
150B-11.
SUBCHAPTER 01G - RESOLUTION OF SUBMERGED
LANDS CLAIMS
SECTION .0200 - RESOLUTION PROCEDURES
15A NCAC 01G .0201 APPLICATION OF
RESOLUTION PROCEDURE
15A NCAC 01G .0202 INITIAL REVIEW OF CLAIM
15A NCAC 01G .0203 LETTER OF NOTIFICATION
15A NCAC 01G .0204 RESPONSE TO LETTER OF
NOTIFICATION
15A NCAC 01G .0205 FOLLOW-UP TO UNSERVED
NOTIFICATION
15A NCAC 01G .0206 CLAIMS DEEMED COMPLETE
15A NCAC 01G .0207 CLAIM DETERMINATION
Authority G.S. 113-205; 113-206(f); 143B-10(a).
SECTION .0300 - STATE POLICIES
15A NCAC 01G .0301 INTRODUCTION
15A NCAC 01G .0302 FILLED LANDS
15A NCAC 01G .0303 PRIVATELY OWNED BEDS
15A NCAC 01G .0304 MARSHLANDS AND
SWAMPLANDS
15A NCAC 01G .0305 LIMITED RIGHTS
Authority G.S. 1-35; 113-205; 113-206(f); 143B-10(a); 146-6;
146-20.1.
SUBCHAPTER 01J - STATE CLEAN WATER
REVOLVING LOAN AND GRANT PROGRAM
SECTION .1200 - SEVERABILITY
15A NCAC 01J .1201 SEVERABILITY
Authority G.S. 159G-15.
SECTION .1300 - FAILED LOW-PRESSURE PIPE
SYSTEMS
15A NCAC 01J .1301 REVIEW PERIOD
15A NCAC 01J .1302 GRANT ELIGIBILITY
15A NCAC 01J .1303 DISTRIBUTION OF FUNDS
Authority G.S. 159G-10(a1).
SECTION .1400 - GENERAL PROVISIONS
15A NCAC 01J .1401 PURPOSE
15A NCAC 01J .1402 DEFINITIONS
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1448
Authority G.S. 159G-44.
SECTION .1500 - ELIGIBILITY REQUIREMENTS
15A NCAC 01J .1501 ELIGIBLE PROJECT COSTS
Authority G.S. 159G-44.
SECTION .1600 - APPLICATIONS
15A NCAC 01J .1601 APPLICATION FILING
DEADLINES
15A NCAC 01J .1602 GENERAL PROVISIONS
Authority G.S. 159G-44.
SECTION .1700 – COMMON CRITERIA FOR
EVALUATION OF ELIGIBLE APPLICATIONS
15A NCAC 01J .1701 COMMON CRITERIA
Authority G.S. 159G-44.
SECTION .1800 - ASSIGNMENT OF CATEGORY TO
WASTEWATER SYSTEM APPLICATIONS
15A NCAC 01J .1801 ASSIGNMENT OF CATEGORY
TO WASTEWATER SYSTEM APPLICATIONS
Authority G.S. 159G-44.
SECTION .1900 – CRITERIA FOR EVALUATION OF
WASTEWATER SYSTEM APPLICATIONS
15A NCAC 01J .1901 EXISTING CONDITIONS
15A NCAC 01J .1902 WATER QUALITY
IMPROVEMENT CRITERIA
Authority G.S. 159G-44.
SECTION .2000 - PRIORITY CRITERIA FOR PUBLIC
WATER SYSTEM PROJECTS
15A NCAC 01J .2001 PUBLIC NECESSITY: HEALTH:
SAFETY AND WELFARE
15A NCAC 01J .2002 PROJECT PLANNING
15A NCAC 01J .2003 SOURCE WATER PROTECTION
Authority G.S. 159G-44.
SECTION .2100 – LOAN AND GRANT AWARD AND
COMMITMENT: DISBURSEMENT OF LOANS AND
GRANTS
15A NCAC 01J .2101 CRITERIA FOR LOAN
ADJUSTMENTS
Authority G.S. 159G-44.
SECTION .2200 – LOAN REPAYMENTS
15A NCAC 01J .2201 REPAYMENT OF PRINCIPAL
AND INTEREST ON LOANS
Authority G.S. 159G-44.
SUBCHAPTER 01K - GROUNDWATER PROTECTION
LOAN FUND
SECTION .0100 - PROGRAM SCOPE
15A NCAC 01K .0101 GENERAL
15A NCAC 01K .0102 APPLICABILITY
15A NCAC 01K .0103 DEFINITIONS
Authority G.S. 143-215.94A; 143-215.94P; 143-215.94T;
143B-279.2.
SECTION .0200 – APPLICATION
15A NCAC 01K .0201 ELIGIBILITY
15A NCAC 01K .0202 APPLICATION PROCEDURES
Authority G.S. 143-215.94C; 143-215.94P; 143-215.94T.
SECTION .0300 - LOAN ADMINISTRATION
15A NCAC 01K .0301 BANK ELIGIBILITY
15A NCAC 01K .0302 LOAN PROCESSING BY BANKS
15A NCAC 01K .0303 DUTIES OF THE LOAN FUND
COORDINATOR
15A NCAC 01K .0304 LOAN APPROVAL CRITERIA
15A NCAC 01K .0305 DELINQUENT ACCOUNTS
Authority G.S. 143-215.94O(g); 143-215.94P.
SECTION .0400 - LOAN CONDITIONS
15A NCAC 01K .0401 LOAN ADMINISTRATION FEES
AND COSTS
15A NCAC 01K .0402 INTEREST AND TERM
15A NCAC 01K .0403 ADDITIONAL CONDITIONS
15A NCAC 01K .0404 FUNDING OF LOAN
Authority G.S. 143-215.94P; 143-215.94T.
* * * * * * * * * * * * * * * * * * * *
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commission for Public Health intends to adopt the rules
cited as 15A NCAC 18A .2650-.2676 and repeal the rules cited
as .2601-.2645.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1449
Link to agency website pursuant to G.S. 150B-19.1(c):
http://cph.publichealth.nc.gov
Proposed Effective Date: September 1, 2012
Public Hearing:
Date: April 12, 2012
Time: 2:00 p.m.
Location: Cardinal Room, 5605 Six Forks Road, Raleigh, NC
Reason for Proposed Action: These Rules are proposed for
repeal to enable the adoption of the USFDA food code for NC,
as described below:
The Food Protection Program (FPP) of the Environmental
Health Section, DPH/NCDHHS, oversees the food protection
rules governing food establishments—including restaurants,
food stands, school cafeterias, and food service facilities in
hospitals and nursing homes. The current rules, 15A NCAC 18A
.2600, were adopted in 1976 and have been periodically
amended to address specific needs. However, changes in
consumer consumption patterns, recent emphasis on increased
government efficiency, as well as shifts in the national food
safety focus necessitate a more fundamental change to North
Carolina's retail food protection rules. As a result, the FPP
proposes to adopt the U.S. Food and Drug Administration's
2009 Food Code.
The purpose of adopting the Food Code is to replace what has
proven to be a labor-intensive and ineffective process of
updating North Carolina's food protection rules with a more
efficient and effective method. The legislature recognized that
need and passed a law (S.L. 2011-394, Section 15(a)) in 2011
that provides the Department with the authority to adopt the
2009 Food Code by reference. As opposed to proposing new
rules (and/or amendments to existing rules) each year, the FPP
will have the option of adopting the latest version or adopting
new provisions of the Food Code once every four years. Thus,
the rulemaking process will be greatly shortened and
unnecessary expenditures of staff resources will be prevented.
Most importantly, North Carolina's food protection rules will
remain consistent with the national standard.
The FPP's adoption of the Food Code has a variety of
advantages and has gained support from all stakeholders within
the food safety spectrum; industry, consumer groups, academia,
regulators, and local, state, and federal agencies. For members
of the food service industry, many of which are associated with
the national chains, the Food Code brings needed uniformity
and consistency with the food safety rules of other states. The
Food Code also provides effective means of reducing the risks of
foodborne illnesses within food service facilities, thus protecting
consumers and industry from potentially devastating health
consequences and financial losses. In addition, the Food Code
offers proven scientific reasons behind each rule and actively
seeks input from the scientific and academic community as their
understanding of foodborne pathogens increases. Local, state,
and federal agencies and regulators support the adoption of the
Food Code because it provides a comprehensive approach to
food safety management, superior supporting documents and
training, and is consistent with the national integrated food
safety management system.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be submitted in writing to Chris
G. Hoke, JD, the Rule-Making Coordinator, during the public
comment period. Additionally, objections may be made verbally
and/or in writing at the public hearing for these rules.
Comments may be submitted to: Chris Hoke, 1931 Mail
Service Center, Raleigh, NC 27699-1931, phone (919)707-5006,
email chris.hoke@dhhs.nc.gov
Comment period ends: May 14, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM: January 3, 2012
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 18 - ENVIRONMENTAL HEALTH
SUBCHAPTER 18A - SANITATION
SECTION .2600 – FOOD PROTECTION AND
SANITATION OF FOOD ESTABLISHMENTS
Note: The Codifier of Rules has determined that publication of
the complete text of these rules proposed to be repealed is
impractical (G.S. 150B-17(b)).
15A NCAC 18A .2601 DEFINITIONS
15A NCAC 18A .2602 PERMITS
15A NCAC 18A .2603 PUBLIC DISPLAY OF GRADE
CARD
15A NCAC 18A .2604 INSPECTIONS AND
REINSPECTIONS
15A NCAC 18A .2605 INSPECTION FORMS
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1450
15A NCAC 18A .2607 STANDARDS AND APPROVAL
OF PLANS
15A NCAC 18A .2608 SOURCES OF FOOD
15A NCAC 18A .2609 REFRIGERATION: THAWING:
AND PREPARATION OF FOOD
15A NCAC 18A .2610 STORAGE: HANDLING: AND
DISPLAY OF FOOD
15A NCAC 18A .2611 RE-SERVING OF FOOD
15A NCAC 18A .2612 SHELLFISH
15A NCAC 18A .2613 BARBECUE PLACES
15A NCAC 18A .2614 OUTDOOR DINING
15A NCAC 18A .2615 MILK AND MILK PRODUCTS
15A NCAC 18A .2616 REQUIREMENTS FOR
EMPLOYEES
15A NCAC 18A .2617 UTENSILS AND EQUIPMENT
15A NCAC 18A .2618 CLEANING OF EQUIPMENT
AND UTENSILS
15A NCAC 18A .2619 METHODS OF BACTERICIDAL
TREATMENT
15A NCAC 18A .2620 STORAGE AND HANDLING OF
UTENSILS AND EQUIPMENT
15A NCAC 18A .2621 DRINKING WATER
FOUNTAINS
15A NCAC 18A .2622 STORAGE: HANDLING: AND
USE OF ICE
15A NCAC 18A .2623 WATER SUPPLY
15A NCAC 18A .2624 TOILET FACILITIES
15A NCAC 18A .2625 LAVATORY FACILITIES
15A NCAC 18A .2626 DISPOSAL OF WASTES AND
BY-PRODUCTS
15A NCAC 18A .2627 FLOORS
15A NCAC 18A .2628 WALLS AND CEILINGS
15A NCAC 18A .2629 DOORS AND WINDOWS
15A NCAC 18A .2630 LIGHTING
15A NCAC 18A .2631 VENTILATION
15A NCAC 18A .2632 STORAGE SPACES
15A NCAC 18A .2633 PREMISES: MISCELLANEOUS:
VERMIN CONTROL
15A NCAC 18A .2634 REQUIREMENTS FOR FOOD
STANDS
15A NCAC 18A .2635 REQUIREMENTS FOR
TEMPORARY FOOD
ESTABLISHMENTS
15A NCAC 18A .2636 REQUIREMENTS FOR
TEMPORARY RESTAURANTS
15A NCAC 18A .2637 EMPLOYEES' COOK TENTS
15A NCAC 18A .2638 GENERAL REQUIREMENTS
FOR PUSHCARTS AND MOBILE FOOD UNITS
15A NCAC 18A .2639 SPECIFIC REQUIREMENTS
FOR PUSHCARTS
15A NCAC 18A .2640 SPECIFIC REQUIREMENTS
FOR MOBILE FOOD UNITS
15A NCAC 18A .2641 PROCEDURE WHEN
INFECTION SUSPECTED
15A NCAC 18A .2642 SEVERABILITY
15A NCAC 18A .2643 INFORMAL REVIEW PROCESS
AND APPEALS PROCEDURE
Authority G.S. 130A-248.
15A NCAC 18A .2644 REQUIREMENTS FOR
CATERED ELDERLY NUTRITION SITES
Authority G.S. 130A-248.
15A NCAC 18A .2645 REQUIREMENTS FOR LIMITED
FOOD SERVICE ESTABLISHMENTS
Authority G.S. 130A-248.
15A NCAC 18A .2650 GENERAL – ADOPTION BY
REFERENCE
The 2009 Food Code, not including subsequent amendments and
editions, established by the U.S. Department of Health and
Human Services, Food and Drug Administration (hereinafter
referred to as the "Food Code") is incorporated by reference. The
Food Code may be accessed from the internet at
www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode
/default.htm, or a copy can be obtained by contacting the U.S.
Department of Commerce, National Technical Information
Service, at (703) 605-6040, and is also available for inspection at
the Division of Public Health, N.C. Department of Health and
Human Services.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2651 DEFINITIONS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 1, the following apply:
(1) In Paragraph 1-201.10(B), add: "'Commissary'
means a food establishment that services a
mobile food unit or a pushcart."
(2) In Paragraph 1-201.10(B), add: "'Congregate
nutrition sites' means a food establishment
where food preparation is limited to same day
service, reheating of potentially hazardous
food (time/temperature control for safety
food), and operated under the rules of the
Division of Aging, N.C. Department of Health
and Human Services."
(3) In Paragraph 1-201.10(B), add: "'Department'
means the N.C. Department of Health and
Human Services."
(4) In Paragraph 1-201.10(B), amend "Food
establishment (2)(b)" to read: "An operation
that is conducted in a mobile, stationary,
temporary, or permanent facility or location
and where consumption is on or off the
premises."
(5) In Paragraph 1-201.10(B), amend "Food
establishment (3)" to read: "'Food
establishment' does not include entities
exempted as described in G.S. 130A-250."
(6) In Paragraph 1-201.10(B), add: "'Food stand'
means a food establishment which prepares or
serves food and which does not provide
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1451
seating facilities for customers to use while
eating or drinking."
(7) In Paragraph 1-201.10(B), add: "'Good repair'
means equipment and utensils shall be
maintained in a state of repair and condition
that meets the requirements specified under
Parts 4-1 and 4-2 of the Food Code as
amended by Rule .2654."
(8) In Paragraph 1-201.10(B), amend "Imminent
health hazard" to: "'Imminent hazard' means an
imminent hazard as defined in G.S. 130A-
2(3)."
(9) In Paragraph 1-201.10(B), add: "'Limited food
establishment' means a food establishment as
defined in G.S. 130A-247(7)."
(10) In Paragraph 1-201.10(B), add: "'Local health
director' means a local health director as
defined in G.S. 130A-2(6)."
(11) In Paragraph 1-201.10(B), amend "Meat" to
read: "'Meat' means the flesh of animals used
as food including the dressed flesh of cattle,
swine, sheep, or goat, other edible animals,
and as defined in G.S. 106-549.15(14), except
fish, poultry, and wild game animals as
specified under Subparagraphs 3-201.17(A)(3)
and (4)."
(12) In Paragraph 1-201.10(B), add: "'Mobile food
unit' means a food establishment or pushcart
designed to be readily moved and vend food."
(13) In Paragraph 1-201.10(B), amend "Person" to:
"'Person' means person as defined in G.S.
130A-2(7)."
(14) In Paragraph 1-201.10(B), amend "Poultry (1)"
to read: "Any domesticated bird (chickens,
turkeys, ducks, geese, guineas, ratites, or
squabs), whether live or dead, as defined in
9 CFR 381.1 Poultry Products Inspection
Regulations Definitions, Poultry, and G.S.
106-549.51(26); and"
(15) In Paragraph 1-201.10(B), add: "'Pushcart'
means a mobile piece of equipment or vehicle
used to vend food."
(16) In Paragraph 1-201.10(B), add: "'Registered
Environmental Health Specialist' means a
Registered Environmental Health Specialist as
defined in G.S. 90A-51(2b) and 90A-51(4) and
authorized agent of the Department."
(17) In Paragraph 1-201.10(B), add: "'Regulatory
Authority' means the Department or authorized
agent of the Department."
(18) In Paragraph 1-201.10(B), add: "'Restaurant'
means a food establishment which prepares or
serves food and provides seating."
(19) In Paragraph 1-201.10(B), add: "'Supplemental
cooking room' means a separate attached or
detached structure in which food is cooked on
grills, pits, or fireplaces and no other
processing occurs."
(20) In Paragraph 1-201.10(B), amend "Temporary
food establishment" to: "'Temporary food
establishment' means a food establishment
which operates for a period of time not to
exceed 21 days in one location, affiliated with
and endorsed by a transitory fair, carnival,
circus, festival, or public exhibition. Food
establishments that operate in the same event
location for more than 21 days per calendar
year are not eligible for a temporary food
establishment permit. Domestic yard sales and
businesses such as auctions, flea markets, or
farmers' markets are not eligible for a
temporary food establishment permit."
(21) In Paragraph 1-201.10(B), add: "'Temporary
food establishment commissary' means a food
establishment affiliated with a temporary food
establishment which prepares food in advance
or off-site. The temporary food establishment
commissary permit shall be valid for no more
than 21 consecutive days and shall be
permitted no more than 7 days prior to
commencement of the event. Food
Establishments that operate in the same
location for more than 21 days per calendar
year are not eligible for a temporary food
establishment commissary permit. Food shall
not be sold from the temporary food
establishment commissary. The temporary
food establishment commissary shall comply
with all temporary food establishment
requirements."
(22) In Paragraph 1-201.10(B), add: "'Transitional
Permit' means a permit issued by the
regulatory authority upon the transfer of
ownership or lease of an existing food
establishment to allow the correction of
construction and equipment problems that do
not represent an immediate threat to public
health. The transitional permit shall expire 180
days after the date of issuance."
(23) In Paragraph 1-201.10(B), delete "Vending
machine."
(24) In Paragraph 1-201.10(B), delete "Vending
machine location."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2652 MANAGEMENT AND
PERSONNEL
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 2, the following apply:
(1) In Paragraph 2-101.11(B), amend to read: "In
a food establishment with two or more
separately permitted departments that are the
legal responsibility of the same permit holder
and that are located on the same premises, the
permit holder may designate a single person in
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1452
charge who is present on the premises during
all hours of operation, and who is responsible
for each separately permitted food
establishment on the premises."
(2) In Section 2-102.11, amend the last sentence
in the first paragraph to: "The person in charge
shall demonstrate this knowledge by being a
certified food protection manager who has
shown proficiency of required information
through passing a test that is part of an
accredited program."
(3) In Section 2-102.11, delete (A), (B), and (C).
(4) In Subpart 2-102, add Section 2-102.12,
Certified Food Protection Manager, to read:
"2-102.12 Certified Food Protection
Manager.
(A) At least one employee that has supervisory
and management responsibility and the
authority to direct and control food preparation
and service shall be a certified food protection
manager who has shown proficiency of
required information through passing a test
that is part of an American National Standards
Institute (ANSI)-accredited program, which is
the accrediting organization for the
Conference for Food Protection Standards for
accreditation of food protection manager
certification programs.
(B) This section does not apply to Risk
Category I food establishments as defined in
10A NCAC 46 .0213."
(5) In Section 2-102.20, replace "Paragraph 2-
102.11(B)" with "Section 2-102.11."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2653 FOOD
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 3, the following apply:
(1) In Paragraph 3-201.11(A), add at the end:
"Food from food establishments in states
adjacent to North Carolina may be sold within
North Carolina if the food establishments are
under jurisdiction of the local or state
enforcement body in that state and approved
by the regulatory authority in North Carolina.
To determine the extent of compliance with
this Code, the regulatory authority may accept
reports regarding compliance and compliance
history from responsible authorities in other
jurisdictions where the food establishments are
located."
(2) In Paragraph 3-301.11(B), amend to read:
"Except when washing fruits and vegetables as
specified under Section 3-302.15 or as
specified in Paragraphs (D) and (E) of this
section, food employees may not contact
exposed ready-to-eat food with their bare
hands and shall use suitable utensils such as
deli tissue, spatulas, tongs, single-use gloves,
or dispensing equipment."
(3) In Paragraph 3-301.11(D), amend to read:
"Paragraph (B) of this section does not apply
to a food employee who contacts exposed,
ready-to-eat food with bare hands at the time
the ready-to-eat food is being added as an
ingredient to a food that is to be cooked in the
food establishment to heat all parts of the food
to a temperature of at least 74ºC (165ºF)."
(4) In Section 3-301.11, redesignate existing
Paragraph (D) as new Paragraph (E).
(5) In Subparagraph 3-301.11(D)(7), replace
"(D)(1)-(6)" with "(E)(1)-(6)."
(6) Delete Section 3-305.13.
(7) In Section 3-306.12, delete (B).
(8) In Paragraph 3-403.11(D), amend to read:
"Reheating for hot holding as specified under
Paragraphs (A) through (C) of this section
shall be completed within 2 hours and the time
the food is between 5ºC (41ºF) or 7ºC (45ºF)
and the temperatures specified under
Paragraphs (A) through (C) of this section may
not exceed 2 hours."
(9) In Paragraph 3-501.12(A), amend to read:
"Under refrigeration that maintains the food
temperature at 5oC (41oF) or less, or at 7ºC
(45ºF) or less as specified under Subparagraph
3-501.16(A)(2)(b); or"
(10) In Paragraph 3-501.13(A), amend to read:
"Under refrigeration that maintains
the food temperature at 5°C (41°F) or less, or
at 7°C (45°F) or less as specified under
Subparagraph 3-501.16(A)(2)(b); or"
(11) In Paragraph 3-501.13(B), amend to read:
"Completely submerged under running water:
(1) At a water temperature of 21°C
(70°F) or below,
(2) With sufficient water velocity to
agitate and float off loose particles in
an overflow, and
(3) For a period of time that does not
allow thawed portions of ready-to-eat
food to rise above 5°C (41°F), or 7°C
(45°F) as specified under
Subparagraph 3-501.16(A)(2)(b), or
(4) For a period of time that does not
allow thawed portions of a raw
animal food requiring cooking as
specified under Paragraph 3-
401.11(A) or (B) to be above 5°C
(41°F), or 7°C (45°F) as specified
under Subparagraph 3-
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1453
501.16(A)(2)(b), for more than 4
hours including:
(a) The time the food is
exposed to the running water
and the time needed for
preparation for cooking, or
(b) The time it takes under
refrigeration to lower the
food temperature to 5°C
(41°F), or 7°C (45°F) as
specified under
Subparagraph 3-
501.16(A)(2)(b);"
(12) In Subparagraph 3-501.14(A)(2), amend to
read: "Within a total of 6 hours from 57ºC
(135ºF) to 5ºC (41ºF) or less, or to 7ºC (45ºF)
or less as specified under Subparagraph 3-
501.16(A)(2)(b)."
(13) In Paragraph 3-501.14(B), amend to read:
"Potentially hazardous food (time/temperature
control for safety food) shall be cooled within
4 hours to 5C (41F) or less, or to 7ºC (45F)
or less as specified under Subparagraph 3-
501.16(A)(2)(b), if prepared from ingredients
at ambient temperature, such as reconstituted
foods and canned tuna."
(14) In Subparagraph 3-501-16(A)(2), amend to
read:
"At a temperature specified in the following:
(a) 5ºC (41°F) or less; or
(b) 7°C (45°F) or between 5°C (41°F)
and 7°C (45°F) in existing
refrigeration equipment that is not
capable of maintaining the food at
5°C (41°F) or less if:
(i) The equipment is in place
and in use in the food
establishment; and
(ii) On or before January 1,
2016, the equipment is
upgraded or replaced to
maintain food at a
temperature of 5°C (41°F) or
less."
(15) In Paragraph 3-501.17(A), amend to read:
"(A) Except when packaging food using a
reduced oxygen packaging method as
specified under Section 3-502.12, and except
as specified in Paragraphs (D) and (E) of this
section, refrigerated, ready-to eat, potentially
hazardous food (time/temperature control for
safety food) prepared and held in a food
establishment for more than 24 hours shall be
clearly marked to indicate the date or day by
which the food shall be consumed on the
premises, sold, or discarded, based on the
temperature and time combinations specified
below. The day of preparation shall be counted
as Day 1.
(1) 5°C (41°F) or less for a maximum
of 7 days; or
(2) 7°C (45°F) or between 5°C (41°F)
and 7°C (45°F) for a maximum of 4
days in existing refrigeration
equipment that is not capable of
maintaining the food at 5°C (41°F) or
less if:
(a) The equipment is in place
and in use in the food
establishment, and
(b) On or before January 1,
2016, the equipment is
upgraded or replaced to
maintain food at a
temperature of 5°C (41°F) or
less."
(16) In Paragraph 3-501.19(B), amend to read: "If
time without temperature control is used as the
public health control up to a maximum of 4
hours:"
(17) In Subparagraph 3-501.19(B)(1), amend to
read: "The food shall have an initial
temperature of 5ºC (41ºF) or less, or 7ºC
(45F) or less when removed from cold
holding temperature control, or 57C (135F)
or greater when removed from hot holding
temperature control;"
(18) In Paragraph 3-801.11(D), amend to read:
"Food employees may not contact ready-to-eat
food as specified under Paragraphs 3-
301.11(B) and (E)."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2654 EQUIPMENT, UTENSILS, AND
LINENS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 4, the following apply:
(1) Delete Sections 4-204.14, 4-204.19, 4-
204.111, 4-204.121, and 4-204.123.
(2) In Section 4-205.10, amend to read: "Except
for toasters, mixers, microwave ovens, water
heaters, and hoods, food equipment shall be
certified or classified for sanitation by an
American National Standards Institute
(ANSI)-accredited certification program. If the
equipment is not certified or classified for
sanitation, the equipment shall meet Parts 4-1
and 4-2 of the Food Code as amended by Rule
2655. Nonabsorbent wooden shelves which are
in good repair may be used in dry storage
areas."
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1454
(3) In Section 4-301.14, amend to read:
"Ventilation hood systems and devices shall
prevent grease or condensation from collecting
on equipment, walls, and ceilings."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2655 WATER, PLUMBING, AND
WASTE
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 5, the following applies:
Delete Paragraph 5-203.11(C) and Section 5-501.14.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2656 PHYSICAL FACILITIES
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 6, the following apply:
(1) Delete Section 6-202.17.
(2) Delete Section 6-202.18.
(3) In Paragraph 6-501.115(B), amend to read:
"Live animals are allowed in the following
situations if the owner or operator does not
permit animals to physically contact food,
serving dishes, utensils, tableware, linens,
unwrapped single-service and single-use
articles or other food service items that may
result in contamination of food or food-contact
surfaces and does not permit animals to
physically contact employees engaged in the
preparation or handling of food:
(1) Fish or crustacea in
aquariums or display tanks;
(2) Patrol dogs accompanying
police or security officers in
offices and dining, sales, and
storage areas; and sentry
dogs in outside fenced areas;
(3) Service animals
accompanying persons with
disabilities in areas that are
not used for food
preparation; and
(4) Dogs (Canis lupus
familiaris) and cats (Felis
catus) in outdoor dining
areas; provided that dogs
and cats are physically
restrained, and do not pass
through any indoor areas of
the food establishment.
Except for service animals
described in Subparagraph
(3) of this Paragraph,
nothing in this Rule
prohibits a food
establishment from
prohibiting dogs and cats in
outdoor dining areas.
(5) In areas that are not used for
food preparation, storage,
sales, display, or dining, in
which there are caged
animals or animals that are
similarly confined, such as
in a variety store that sells
pets or a tourist park that
displays animals."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2657 POISONOUS OR TOXIC
MATERIALS
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 7, the following apply:
(1) In Section 7-101.11, add at the end: "Only
those pesticides which have been registered
with the EPA and with the N.C. Department of
Agriculture and Consumer Services shall be
used. If the manufacturer's label is missing
from a pesticide container, the container shall
be identified with the manufacturer's product
brand name, percentage of each active
ingredient, and EPA registration number."
(2) In Section 7-203.11, add at the end:
"Sanitizing solutions shall not be stored in or
dispensed from containers previously
containing other poisonous or toxic materials."
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2658 COMPLIANCE AND
ENFORCEMENT
The provisions of this Rule make amendments, additions, and
deletions to the Food Code incorporated by reference in Rule
.2650 of this Section. In Chapter 8, the following apply:
(1) In Section 8-103.10, add the following to the
end: "Variance requests shall be submitted to a
committee including a food scientist and
representatives from industry and state and
local public health agencies, appointed by the
Department."
(2) In Section 8-201.11, add the following to the
beginning: "Plans drawn to scale for
franchised or chain food establishments shall
be submitted for review and approval to the
Environmental Health Services Branch, N.C.
Division of Public Health. Plans drawn to
scale for independent food establishments
shall be submitted for review and approval to
the local health department."
(3) In Paragraph 8-201.12(A), amend to read:
"Intended menu and plan review application;"
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1455
(4) In Paragraph 8-302.14(G), amend to read: "A
statement signed by the applicant that attests to
the accuracy of the information provided in the
application."
(5) In Paragraph 8-302.14(G), delete (1) and (2).
(6) In Section 8-303.20, delete "Permit Renewal"
from the heading.
(7) In Section 8-303.20, amend to read: "As
applicable, the regulatory authority may issue
a permit in accordance with 15A NCAC 18A
.2659, to a new owner of an existing food
establishment after a properly completed
application is submitted, reviewed, and
approved, and an inspection shows that the
establishment is in compliance with this Code.
If the establishment is not in compliance with
the Code, a transitional permit may be issued
in accordance with G.S. 130A-248 (b) and (c)
and Rule .2659(b)."
(8) Delete Section 8-304.10.
(9) Delete Paragraph 8-304.11(A).
(10) Delete Section 8-304.20.
(11) In Section 8-401.10, delete (A) and replace
with: "The regulatory authority shall inspect a
food establishment in accordance with 10A
NCAC 46 .0213."
(12) In Section 8-401.10, delete (B) and (C).
(13) Delete Section 8-401.20.
(14) Delete Section 8-402.10.
(15) In Subparagraph 8-402.20(A)(1), amend to
read: "The permit holder shall allow access to
the regulatory authority as specified under
Section 8-402.11 of the Code and G.S. 130A-
17 and 130A-249."
(16) In Subparagraph 8-402.20(A)(3), amend to
read: "If access is denied, an administrative
warrant may be obtained according to G.S. 15-
27.2; and"
(17) In Section 8-402.40, amend heading to read:
"Administrative Warrant to Gain Access."
(18) In Section 8-402.40, amend to read: "If denied
access to a food establishment for an
authorized purpose and after complying with
Section 8-402.20 of the Food Code as
amended by Rule .2658, the regulatory
authority may issue, or apply for the issuance
of, an administrative warrant to gain access as
provided by G.S. 15-27.2."
(19) In Section 8-403.20, delete the reference to
Section 8-406.11.
(20) Delete Section 8-406.11.
(21) Delete Subpart 8-501.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2659 PERMITS
(a) No permit to operate shall be issued to a person until an
evaluation by the regulatory authority shows that the
establishment complies with this Section. However, the
regulatory authority shall allow a period of 210 days after the
date of issuance to comply with the certified food protection
manager requirements in Sections 2-102.11 and 2-102.12 of the
Food Code as amended by Rule .2652.
(b) Upon transfer of ownership of an existing food
establishment, the regulatory authority shall complete an
evaluation. If the establishment satisfies all the requirements of
the rules, a permit shall be issued. If the establishment does not
satisfy all the requirements of the rules, a permit shall not be
issued. A transitional permit may be issued if the regulatory
authority determines that the noncompliant items are
construction or equipment problems that do not represent a
threat to public health, or no certified food protection manager is
on the premises. The transitional permit shall expire 180 days
after the date of issuance, unless suspended or revoked before
that date, and shall not be renewed. Upon expiration of the
transitional permit, the permit holder shall have corrected the
noncompliant items and obtained a permit, or the food
establishment shall not continue to operate.
(c) The regulatory authority may impose conditions on the
issuance of a permit or transitional permit. Conditions shall be
specified for one or more of the following areas:
(1) The number of seats or consumers served.
(2) The categories of food served.
(3) Time schedules in completing minor
construction items.
(4) Modification or maintenance of water
supplies.
(5) Use of facilities for more than one purpose.
(6) Continuation of contractual arrangements upon
which basis the permit was issued.
(7) Submission and approval of plans for
renovation.
(8) Any other conditions necessary for a food
establishment to remain in compliance with
this Section.
(d) If a permit or transitional permit has been suspended, the
suspension shall be lifted if the regulatory authority has
evaluated the food establishment and found that the violations
causing the suspension have been corrected. If a permit or
transitional permit has been revoked, a new permit shall be
issued only after the regulatory authority has evaluated the food
establishment and found it to comply with all applicable rules.
The evaluations shall be conducted within 15 days after the
request is made by the permit holder.
Authority G.S. 130A; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2660 PUBLIC DISPLAY OF GRADE
CARDS
(a) Upon initial inspection of a food establishment or if a
renovation or other change in the establishment makes the grade
card inconspicuous, the regulatory authority shall designate the
location for posting the grade card. The grade card shall be
located in a conspicuous place where it may be readily observed
by the public upon entering the food establishment. If the person
in charge of the food establishment objects to the location
designated by the regulatory authority then the person in charge
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1456
may suggest an alternative location which meets the criteria of
this Rule.
(b) When an inspection of a food establishment is made, the
regulatory authority shall remove the existing grade card, issue a
new grade card, and post the new grade card in the same location
where the grade card was previously posted as long as that
location remains conspicuous. The person in charge of the food
establishment shall keep the grade card posted at the designated
location at all times. The grade card may be posted in another
location which meets the criteria of this Rule if agreed upon by
the person in charge and the regulatory authority.
(c) On a mobile food unit and pushcart, the grade card shall be
located where it is visible to the public when purchasing food.
The grade card shall be maintained on the mobile food unit and
pushcart and may be removed during transport to operating
locations and the person in charge shall repost the grade card in
the original location prior to commencing operation.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2661 INSPECTIONS AND
REINSPECTIONS
(a) Upon entry into a food establishment, the regulatory
authority shall provide identification and the purpose in visiting
that establishment. The regulatory authority shall inquire as to
the identity of the person in charge and invite the person in
charge to accompany the regulatory authority during the
inspection. If no employee is identified as the person in charge,
the regulatory authority shall invite an employee to accompany
them on the inspection. Following the inspection, the regulatory
authority shall offer to review the results of the inspection with
the person in charge or employee, as applicable.
(b) The grading of food establishments shall be conducted using
an inspection form furnished by the regulatory authority. The
form shall provide for the following information:
(1) The name and mailing address of the food
establishment;
(2) The name of the permit holder;
(3) The permit status and score given;
(4) Standards of construction and operation as
listed in .2651 through .2677 of this Section;
(5) An explanation for all points deducted;
(6) The signature of the regulatory authority; and
(7) The date.
(c) The grading of food establishments shall be based on the
standards of operation and construction as set forth in Rules
.2650 through .2676 of this Section.
(d) The Food Establishment Inspection form shall be used to
document points assessed for violation of the rules of this
Section as follows:
(1) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to person in charge present, certification by
accredited program or performs duties shall
equal no more than 2 points.
(2) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to management awareness, policy present, and
allergy awareness shall equal no more than 3
points.
(3) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to proper use of reporting, restriction, and
exclusion shall equal no more than 3 points.
(4) Violation of Chapters 2 and 3 of the Food
Code as amended by Rules .2652 and .2653 of
this Section related to proper eating, tasting,
drinking, or tobacco use shall equal no more
than 2 points.
(5) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to no discharge from eyes, nose, and mouth
shall equal no more than 1 point.
(6) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to hands clean and properly washed shall equal
no more than 4 points.
(7) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to no bare hand contact with ready-to-eat food
or approved alternate method properly
followed shall equal no more than 3 points.
(8) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to handwashing facilities
supplied and accessible shall equal no more
than 2 points.
(9) Violation of Chapters 3 and 5 of the Food
Code as amended by Rules .2653 and .2655 of
this Section related to food obtained from an
approved source shall equal no more than 2
points.
(10) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food received at proper temperature shall
equal no more than 2 points.
(11) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food in good condition, safe, and
unadulterated shall equal no more than 2
points.
(12) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to required records available, shellstock tags,
and parasite destruction shall equal no more
than 2 points.
(13) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food separated and protected shall equal no
more than 3 points.
(14) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to food-contact surfaces cleaned and sanitized
shall equal no more than 3 points.
(15) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to disposition of returned, previously served,
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1457
reconditioned, and unsafe food shall equal no
more than 2 points.
(16) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cooking time and temperatures shall equal
no more than 3 points.
(17) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to reheating for hot holding shall equal no
more than 3 points.
(18) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cooling time and temperatures shall equal
no more than 3 points.
(19) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to hot holding temperatures shall equal no
more than 3 points.
(20) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to cold holding temperatures shall equal no
more than 3 points.
(21) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to date marking and disposition shall equal no
more than 3 points.
(22) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to time as a public health control procedures
and records shall equal no more than 2 points.
(23) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to consumer advisory provided for raw or
undercooked foods shall equal no more than 1
point.
(24) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to pasteurized foods used and prohibited foods
not offered shall equal no more than 3 points.
(25) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food additives approved and properly used
shall equal no more than 1 point.
(26) Violation of Chapter 7 of the Food Code as
amended by Rule .2657 of this Section related
to toxic substances properly identified, stored,
and used shall equal no more than 2 points.
(27) Violation of Chapters 3, 4 and 8 of the Food
Code as amended by Rules .2653, .2654, and
.2658 of this Section related to compliance
with variance, specialized process, and
HACCP plan shall equal no more than 2
points.
(28) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to pasteurized eggs used where required shall
equal no more than 1 point.
(29) Violation of Chapters 3 and 5 of the Food
Code as amended by Rules .2653 and .2655 of
this Section related to water from an approved
source shall equal no more than 2 points.
(30) Violation of Chapter 8 of the Food Code as
amended by Rule .2658 of this Section related
to variance obtained for specialized processing
methods shall equal no more than 1 point.
(31) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to proper cooling methods
used or adequate equipment for temperature
control shall equal no more than 1 point.
(32) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to plant food properly cooked for hot holding
shall equal no more than 1 point.
(33) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to approved thawing methods used shall equal
no more than 1 point.
(34) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to thermometers provided and accurate shall
equal no more than 1 point.
(35) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to food properly labeled or original container
shall equal no more than 2 points.
(36) Violation of Chapters 2 and 6 of the Food
Code as amended by Rules .2652 and .2656 of
this Section related to insects and rodents not
present or no unauthorized animals or persons
shall equal no more than 2 points.
(37) Violation of Chapters 3 and 6 of the Food
Code as amended by Rules .2653 and .2656 of
this Section related to contamination prevented
during food preparation, storage, and display
shall equal no more than 2 points.
(38) Violation of Chapter 2 of the Food Code as
amended by Rule .2652 of this Section related
to personal cleanliness shall equal no more
than 1 point.
(39) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to wiping cloths properly
used and stored shall equal no more than 1
point.
(40) Violation of Chapters 3 and 7 of the Food
Code as amended by Rules .2653 and .2657 of
this Section related to washing fruits and
vegetables shall equal no more than 1 point.
(41) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to in-use utensils properly stored shall equal
no more than 1 point.
(42) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to utensils, equipment, and linens properly
stored, dried and handled shall equal no more
than 1 point.
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26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1458
(43) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to single-use and single-service articles
properly stored and used shall equal no more
than 1 point.
(44) Violation of Chapter 3 of the Food Code as
amended by Rule .2653 of this Section related
to gloves used properly shall equal no more
than 1 point.
(45) Violation of Chapters 3 and 4 of the Food
Code as amended by Rules .2653 and .2654 of
this Section related to equipment, food and
non-food contact surfaces approved, cleanable,
properly designed, constructed and used shall
equal no more than 2 points.
(46) Violation of Chapter 4 of the Food Code as
amended by Rule .2654 of this Section related
to warewashing facilities installed, maintained,
used, and test strips shall equal no more than 1
point.
(47) Violation of Chapter 4 of the Food Code as
amended by Rule.2654 of this Section related
to non-food contact surfaces clean shall equal
no more than 1 point.
(48) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to hot and cold water available and adequate
pressure shall equal no more than 2 points.
(49) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to plumbing installed and proper backflow
devices shall equal no more than 2 points.
(50) Violation of Chapter 5 of the Food Code as
amended by Rule .2655 of this Section related
to sewage and wastewater properly disposed
shall equal no more than 2 points.
(51) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to toilet facilities properly
constructed, supplied, and cleaned shall equal
no more than 1 point.
(52) Violation of Chapters 5 and 6 of the Food
Code as amended by Rules .2655 and .2656 of
this Section related to garbage and refuse
properly disposed and facilities maintained
shall equal no more than 1 point.
(53) Violation of Chapters 4 and 6 of the Food
Code as amended by Rules .2654 and .2656 of
this Section related to physical facilities
installed, maintained, and clean shall equal no
more than 1 point.
(54) Violation of Chapters 4 and 6 of the Food
Code as amended by Rules .2654 and .2656 of
this Section related to meets ventilation and
lighting requirements and designated areas
used shall equal no more than 1 point.
(e) In filling out the inspection form, points may be deducted
only once for a single occurrence or condition existing within or
outside of the food establishment. Deductions shall be based on
actual violations of the rules of this Section observed during the
inspection. The regulatory authority shall take zero, one-half, or
a full deduction of points depending upon the severity or the
recurring nature of the core item violations. Priority items or
priority foundation items may be corrected during the inspection
and no more than one-half of the total point value shall be
deducted when the violation meets the following criteria:
(1) The priority item or priority foundation item
violation was not documented on the previous
inspection; and
(2) Correction of the item is documented on the
inspection form.
(f) At the time of inspection, if a priority item or priority
foundation item violation is observed and not corrected, the
regulatory authority shall take one-half or a full deduction of
points depending upon the severity or the recurring nature of the
violation. The regulatory authority shall specify a time frame of
no more than 10 calendar days to correct the priority items or
priority foundation items.
(g) In determining whether items or areas of a food
establishment are clean for purposes of enforcing the rules set
forth in this Section and grading a food establishment, the
regulatory authority shall consider, among other things:
(1) The age of the accumulated material;
(2) The relative percentage of items which are
clean and not clean;
(3) The cleaning practices of the food
establishment; and
(4) The health risk posed by the circumstances.
(h) Upon request of the permit holder or his or her representative
a reinspection shall be made. In the case of a food establishment
which requests an inspection for the purpose of raising the
alphabetical grade, and which holds an unrevoked permit, the
regulatory authority shall make an unannounced inspection
within 15 days from the date of the request.
(i) In the case of food establishments that have been closed for
failure to comply with the rules of this Section, a reinspection to
consider the issuance or reissuance of a permit shall be made at
the earliest convenience of the regulatory authority.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2662 GRADING
(a) The grading of food establishments is based on a system of
scoring. A food establishment that earns a score of at least:
(1) 90 percent shall receive a grade A;
(2) 80 percent and less than 90 percent shall
receive a grade B;
(3) 70 percent and less than 80 percent shall
receive a grade C.
Permits shall be immediately revoked in accordance with G.S.
130A-23(d) for food establishments receiving a score of less
than 70 percent.
(b) The posted grade card shall be black on a white background.
All graphics, letters, and numbers for the grade card shall be
approved by the State. The alphabetical and numerical rating
shall be 1.5 inches in height. No other public displays
representing sanitation level of the establishment may be posted
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1459
by the regulatory authority, except for sanitation awards issued
by the local health department. Sanitation awards shall be in a
different color and size from the grade card and must be labeled
as an award.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2663 OUTDOOR DINING AND
BEVERAGE FACILITIES
(a) A Food establishment may provide outdoor dining and
beverage service.
(b) Beverages may be prepared outdoors if all equipment and
utensils are provided with overhead protection.
(c) Portable cooking, food, and beverage serving facilities shall
be allowed for food service provided to a club, organization, or
private individual as a planned event and from which the public
is excluded. All open food and utensils shall be provided with
overhead protection or otherwise equipped with individual
covers such as domes, chafing lids, or cookers with hinged lids.
(d) Food and beverage equipment and supplies shall be located
in enclosed areas and protected from environmental
contamination when not in operation.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2664 SUPPLEMENTAL COOKING
ROOMS
The following construction standards apply to food
establishments cooking on grills, pits, or fireplaces in
supplemental cooking rooms:
(1) Grills, pits, and fireplaces shall be kept clean,
maintained in good repair, and located in an
enclosed room as specified in Sections 6-
202.15 and 6-202.16 of the Food Code as
amended by Rule .2656 and shall comply with
Parts 4-1 and 4-2 of the Food Code as
amended by Rule .2654.
(2) Walls and ceilings shall be kept clean and in
good repair.
(3) Floors shall be constructed of easily cleanable
concrete or equal and graded to drain.
(4) Water under pressure shall be provided for
floor cleaning.
(5) Ventilation systems and devices shall prevent
grease or condensation from collecting on
walls and ceilings.
(6) A handwashing sink shall be provided as
specified in Section 5-202.12 of the Food
Code as amended by Rule .2655.
(7) Lighting shall comply with Sections 6-202.11
and 6-303.11 of the Food Code as amended by
Rule .2656.
(8) All food shall be processed in an area meeting
the requirements for operation and
construction as set forth in Rules .2650
through .2657.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2665 TEMPORARY FOOD
ESTABLISHMENT AND TEMPORARY FOOD
ESTABLISHMENT COMMISSARY PERMIT
REQUIREMENTS
(a) A permit shall be issued by the regulatory authority to each
temporary food establishment and temporary food establishment
commissary that complies with Rules .2665 through .2669 of
this Section. Temporary food establishments and temporary food
establishment commissaries are not eligible for transitional
permits. A single permit shall be issued for a temporary food
establishment that does not operate consecutive days as long as
the total number of days does not exceed 21. The permit shall be
posted in a conspicuous place designated by the regulatory
authority. The permit shall include:
(1) Name and location of the temporary food
establishment and temporary food
establishment commissary;
(2) Permit holder;
(3) Name and location of the event;
(4) Dates of operation; and
(5) Any other conditions necessary to remain in
compliance with this Section.
(b) No food preparation shall occur prior to a permit being
issued by the regulatory authority.
(c) When affiliated with a temporary food establishment for an
event where the food will be served, a temporary food
establishment commissary permit for prior food preparation may
be issued for advance or off-site preparation. A temporary food
establishment commissary may commence operation no more
than 7 days prior to the event and operate for the length of the
event up to a time period not to exceed 21 consecutive days.
(d) Temporary food establishments and temporary food
establishment commissaries shall make application to the
regulatory authority no less than 15 calendar days prior to
commencing operation. This 15-day requirement does not
prohibit the submission of applications for substitute vendors
provided that these applications are submitted no less than 3
business days prior to the event. Applications shall be submitted
to the regulatory authority and shall include the following:
(1) Name, mailing address, and telephone number
of the permit holder of the temporary food
establishment or temporary food establishment
commissary;
(2) Name and location of the event at which the
temporary food establishment operated
immediately prior to the current event for
which applying, if applicable;
(3) Name, mailing address, and telephone number
of the event organizer;
(4) Event name, location, dates, and hours of
operation;
(5) Proposed menu, food handling procedures,
including anticipated food volume and
sources;
(6) Food equipment list;
(7) Proposed water supply;
(8) Provisions for sewage and other waste
disposal; and
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(9) Any information necessary to ensure
compliance.
(e) The regulatory authority shall require documentation to
verify any provision of Rules .2665 through .2669 of this
Section.
(f) The regulatory authority may condition the permit to ensure
compliance with Rules .2665 through .2669 of this Section.
(g) Evaluations of temporary food establishments and
temporary food establishment commissaries shall be made as
often as necessary to ensure compliance. The regulatory
authority shall immediately suspend the permit for repeated
violations of priority items or priority foundation items.
(h) The permit shall be suspended or revoked immediately
pursuant to G.S. 130A-23(d).
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2666 TEMPORARY FOOD
ESTABLISHMENT FOOD HANDLING REQUIREMENTS
(a) All sources of food shall comply with Chapter 3 of the Food
Code as amended by Rule .2653.
(b) Raw meat, poultry, and fish shall be purchased in ready-to-cook
portions, except that cutting and skewering shall be
allowed where evaluation by the regulatory authority determines
sufficient preparation areas and food equipment are provided.
(c) Salads containing ingredients that are cooked and cooled
shall not be prepared in the temporary food establishment or
temporary food establishment commissary, but may be served.
(d) Shellstock and shucked shellfish shall comply with Chapter 3
of the Food Code as amended by Rule .2653.
(e) All food shall be protected in accordance with Chapter 3 of
the Food Code as amended by Rule .2653 and the following also
apply:
(1) The regulatory authority may approve food
preparation and storage for a temporary food
establishment at a permitted temporary food
establishment commissary or other permitted
food establishment;
(2) Temporary food establishment or temporary
food establishment commissary operations
shall not be conducted in any room or area
used for purposes not related to the temporary
food establishment or other permitted food
establishment;
(3) Food shall be secured in a manner to prevent
tampering and contamination at all times;
(4) Ready-to-eat food shall not be stored in direct
contact with ice; non-mechanical coolers must
be provided with a drainage port;
(5) All food shall be stored above the ground or
floor and arranged to prevent contamination of
foods;
(6) Potentially hazardous food (time/temperature
control for safety food) that has been heated at
the temporary food establishment or temporary
food establishment commissary shall not be
sold or held for use on subsequent days.
Approval may be granted to allow cooling and
reheating of potentially hazardous food
(time/temperature control for safety food) if
the food can be handled in accordance with the
rules of this Section; and
(7) The regulatory authority shall further limit the
food to be prepared or served, based on
methods of preparation and the adequacy of
facilities, equipment, utensils, and available
utilities.
(f) Food prepared at a previous event or potentially hazardous
food (time/temperature control for safety food) removed from
original packaging shall not be served at a subsequent event.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2667 TEMPORARY FOOD
ESTABLISHMENT EMPLOYEE REQUIREMENTS
(a) Food employees shall wear effective hair restraints, clean
outer clothing, and maintain good hygienic practices as specified
in Part 2-4 of the Food Code as amended by Rule .2652.
(b) Employees shall wash their hands in a handwashing sink
before starting work, after each visit to the toilet, and as often as
necessary to remove soil and contamination.
(c) Employees shall not use tobacco in any form or consume
food in food preparation, storage or serving areas, utensil
washing, or utensil storage areas.
(d) Employees may consume beverages in the food
establishment only if covered and consumed in a manner to
prevent contamination of food and food-contact surfaces.
(e) Employees shall comply with the requirements in Subpart 2-
201 of the Food Code as amended by Rule .2652.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2668 TEMPORARY FOOD
ESTABLISHMENT EQUIPMENT AND UTENSIL
REQUIREMENTS
(a) Equipment and utensils shall be kept clean and maintained in
good repair. Those surfaces which come in contact with food,
drink, or utensils shall comply with Parts 4-1 and 4-2 of the
Food Code as amended by Rule .2664.
(b) Equipment and utensils shall be cleaned, sanitized, stored,
and handled in accordance with Parts 4-6 and 4-7 of the Food
Code as amended by Rule .2654.
(c) When multi-use utensils other than eating and drinking
utensils are used, 3 basins of sufficient size to submerge, wash,
rinse, and sanitize utensils shall be provided. Other equivalent
products and procedures may be used in accordance with Part 4-
7 of the Food Code as amended by Rule .2654. At least 1
drainboard, table, or counter space shall be provided for air-drying.
(d) When multi-use eating and drinking utensils are used, a 3-
compartment sink of sufficient size to submerge, wash, rinse,
and sanitize utensils must be provided. Drainboards shall be
provided as specified in Section 4-301.13 of the Food Code as
amended by Rule .2654.
(e) Wash, rinse, and sanitizing solutions shall be maintained as
specified in Section 4-501.18 of the Food Code as amended by
Rule .2654.
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(f) A food preparation sink must be provided for washing
produce.
(g) Food shields or other effective barriers shall be installed in a
manner to protect food and food contact surfaces from
contamination.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2669 TEMPORARY FOOD
ESTABLISHMENT PHYSICAL REQUIREMENTS
(a) The temporary food establishment shall be located in an area
kept in a clean and sanitary condition. The arrangement of
temporary food establishments shall restrict public access to all
areas of the food establishment, except dining areas.
(b) For outdoor cooking, overhead protection shall be provided
such that all food, utensils, and equipment are protected. When
bulk foods such as roasts, shoulders, and briskets are cooked,
cooking equipment with attached lids, such as smokers, roasters,
and other cooking devices, provide sufficient cover for the food
being cooked. Food in individual servings such as hot dogs,
hamburgers, and meat kabobs shall have additional overhead
cover.
(c) Effective measures such as fans, screens, walls, or a
combination thereof, shall be provided to keep dust, insects,
rodents, animals, and other sources of potential contamination
out of the food establishment and shall comply with Paragraph
6-501.15(B) of the Food Code as amended by Rule .2656
regarding live animals.
(d) Indoor/outdoor carpeting, matting, tarps, or similar
nonabsorbent material is required as ground covering in the
absence of asphalt, concrete, grass, or other surfaces that control
dust or mud.
(e) The temporary food establishment and temporary food
establishment commissary shall be equipped with a handwashing
sink used only for employee handwashing. This facility shall
consist of at least a 2 gallon container with an unassisted free
flowing faucet such as a stopcock or turn spout, soap, single-use
towels, and a wastewater receptacle. Warm water shall be used
for handwashing.
(f) Water under pressure shall be provided as follows:
(1) The water supply used shall be in accordance
with 15A NCAC 18A .1700, 15A NCAC 18C,
or 02 NCAC 09C .0703;
(2) All potable water holding tanks, containers,
and hoses used to transport or store water at
the temporary food establishment shall be
drained, washed, rinsed, and sanitized;
(3) Containers and hoses used to store, haul, or
convey potable water shall be approved for
potable water use, shall not be used for any
other purpose, and shall be protected from
contamination. Potable water hoses and
containers shall be labeled; and
(4) Warm water shall be available and used for
cleaning.
(g) Wastewater shall be disposed in accordance with 15A NCAC
18A .1900 or 15A NCAC 02H .0200. Portable wastewater
containers may be used when the volume of potable water can be
determined by the dimensions of sinks, basins, and interim
storage containers and the portable wastewater containers are
sized to contain the wastewater volume generated. Wastewater
containers and hoses shall be labeled and not used for any other
purpose. Wastewater containers shall not be emptied into
waterways, storm drains, or on the ground.
(h) Employees must have access to toilet facilities that are kept
clean and in good repair.
(i) Garbage and refuse shall be collected and stored in garbage
containers with properly fitted lids. Nothing in this Rule shall
prohibit uncovered garbage containers in the food establishment
during periods of operation. Garbage and refuse shall be
removed as needed and disposed in a manner to prevent vermin
breeding and harborage. The premises shall be kept clean.
(j) Lighting shall comply with Section 6-202.11 of the Food
Code as amended by Rule .2656. Lighting is required for
nighttime operations.
(k) Temporary food establishments and temporary food
establishment commissaries shall remain connected to necessary
utilities at all times food is prepared, served, or stored in the
food establishment.
(l) Toxic materials shall be labeled, used, and stored to prevent
the contamination of food, equipment, utensils, linens, and
single-service articles and meet the provisions of Sections 7-
101.11 and 7-203.11 of the Food Code as amended by Rule
.2657.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2670 GENERAL REQUIREMENTS
FOR PUSHCARTS AND MOBILE FOOD UNITS
(a) A permit shall be issued by the regulatory authority which
inspects the commissary from which the pushcart or mobile food
unit is to operate, if the regulatory authority determines that the
pushcart or mobile food unit complies with the rules of this
Section. The permit shall be maintained on the pushcart or
mobile food unit and made available to the regulatory authority
upon request.
(b) The regulatory authority which issues the permit shall be
provided by the permit holder a list of counties and locations
where each pushcart or mobile food unit will operate.
(c) The pushcart or mobile food unit permit holder shall provide
the regulatory authority in each county in which food service
operations are proposed a list of locations where they will
operate. Such lists must be kept current.
(d) Prior to initiating food service operations in a particular
county, the operator of the pushcart or mobile food unit shall
submit to that particular county such carts or units for inspection
or reinspection to determine compliance with this Section.
(e) Pushcarts or mobile food units shall operate in conjunction
with a permitted commissary and shall report at least daily to the
commissary for supplies, cleaning, and servicing. Facilities, in
compliance with this Section, shall be provided at the
commissary for storage of all supplies. The pushcart shall also
be stored in an area that protects it from dirt, debris, vermin, and
other contamination. Water faucets used to supply water for
pushcarts or mobile food units shall be protected to prevent
contact with chemicals, splash, and other sources of
contamination. Solid waste storage and liquid waste disposal
facilities must also be provided on the commissary premises.
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(f) All food shall be obtained from sources that comply with
Chapter 3 of the Food Code as amended by Rule .2653.
(g) All potentially hazardous food (time/temperature control for
safety food) shall be maintained at temperatures as required in
Chapter 3 of the Food Code as amended by Rule .2653. A metal
stem-type thermometer accurate to 1C (2F) shall be available
to check food temperatures.
(h) Only single-service articles shall be used for serving
customers. Single-service articles shall be purchased only in
sanitary containers, shall be stored therein in a clean, dry place
until used, and shall be handled in a manner to prevent
contamination.
(i) All garbage and other solid waste shall be stored and disposed
in an approved manner.
(j) Employees shall wear effective hair restraints, clean outer
clothing, and maintain good hygienic practices as specified in
Part 2-4 of the Food Code as amended by Rule .2652.
(k) Employees shall comply with the requirements in Subpart 2-
201 of the Food Code as amended by Rule .2652.
(l) Equipment and utensils shall meet the requirements in Parts
4-1 and 4-2 of the Food Code as amended by Rule .2654.
(m) The pushcart or mobile food unit shall be kept clean and free
of flies, roaches, rodents, and other vermin.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2671 SPECIFIC REQUIREMENTS
FOR PUSHCARTS
(a) Only hot dogs shall be prepared, handled, or served from a
pushcart; however, food which has been prepared,
pre-portioned, and individually pre-wrapped at a food
establishment or commissary may be served from a pushcart.
(b) Food and utensils on the pushcart exposed to the public or to
dust or insects shall be protected by glass, or otherwise, on the
front, top, and ends, and exposed only as much as may be
necessary to permit the handling and serving of food.
(c) Toilet facilities, handwashing sinks, and running water are
not required. Single-service towels are required.
(d) All pre-wrapped potentially hazardous food
(time/temperature control for safety food) shall be maintained at
temperatures as required in Chapter 3 of the Food Code as
amended by Rule .2653 or as labeled on the food item. Each
pre-wrapped food item shall contain the name of the food
establishment at which it was prepared, the name of the food
item, and the time and date of expiration. The wrapper shall
enclose the food at all times but sealing is not required.
(e) Pre-portioned, individually pre-wrapped food that remains
after the specified time period has elapsed shall not be sold for
human consumption.
(f) Pushcarts shall not be provided with seating facilities.
(g) Pushcarts shall not be used for consumer self-service.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2672 SPECIFIC REQUIREMENTS
FOR MOBILE FOOD UNITS
(a) A mobile food unit shall be constructed and arranged so that
food, drink, utensils, and equipment will not be exposed to
insects, dust, and other contamination. Protection against flies
and other insects shall be provided by screening or by effective
use of fans. Where food or griddles are exposed to the public or
to dust or insects, they shall be protected by glass, or otherwise,
on the front, top, and ends, and exposed only as much as may be
necessary to permit the handling and serving of food.
(b) A mobile food unit shall have a potable water system under
pressure. The system shall furnish hot and cold water for all food
preparation, utensil cleaning, and handwashing. The water inlet
shall be located so that it will not be contaminated by waste
discharge, road dust, oil, or grease and it shall be kept capped
unless being filled.
(c) Water heating facilities shall be provided.
(d) A handwashing sink with hot and cold water, combination
supply faucet, soap, and single-service towels shall be provided.
(e) At least a 1-compartment sink shall be provided. The sink
shall be of sufficient size to submerge, wash, rinse, and sanitize
utensils and shall have splashback protection. Drainboards shall
be provided as specified in Section 4-301.13 of the Food Code
as amended by Rule .2654 to accommodate the drying of washed
utensils. However, in cases where no food is prepared on the
mobile food unit and all utensils are effectively cleaned at the
commissary, the equipment sink is not required.
(f) Sewage disposal must be provided either by means of an
approved sewage disposal system or approved sewage storage
tanks. Sewage storage tanks must be maintained in a manner so
as not to create a health hazard or nuisance and to prevent
contamination of food or water supply. Toilets are not required
on the unit. Liquid waste that results from the operation of a
mobile food unit shall be disposed in an approved sewage
disposal system or stored in a permanently installed sewage
storage tank that is of at least 15 percent larger capacity than the
water supply tank. Liquid waste shall not be discharged from the
sewage storage tank when the mobile food unit is in motion. All
connections on the vehicle for servicing mobile food unit waste
disposal facilities shall be of a different size or type than those
used for supplying potable water to the mobile food unit. The
waste connection shall be located lower than the water inlet
connection to preclude contamination of the potable water
system.
(g) A servicing area shall be established at a commissary for the
mobile food unit. Potable water servicing equipment shall be
installed, stored, and handled to protect the water and equipment
from contamination. The mobile food unit's sewage storage tank
shall be flushed and drained during servicing operation. All
sewage shall be discharged to an approved sewage disposal
system in accordance with 15A NCAC 18A .1900 or 15A
NCAC 02H .0200.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2673 CONGREGATE NUTRITION
SITES
Congregate nutrition sites shall comply with all requirements in
Rules .2650-.2662 of this Section with the following exceptions:
(1) Food preparation in a congregate nutrition site
shall be limited to reheating food prepared in a
food establishment or in a food processing
plant or preparation of food that does not
require cooking.
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(2) Congregate nutrition sites shall not prepare
any potentially hazardous food
(time/temperature control for safety food)
prior to the day of service.
(3) Potentially hazardous food (time/temperature
control for safety food) which has been heated
or reheated at the congregate nutrition site and
remains at the end of the day shall not be
served or placed in refrigeration to be used
another day.
(4) Food prepared in a private home may not be
used or offered for human consumption in a
congregate nutrition site.
(5) All food prepared or served in a congregate
nutrition site shall be consumed only on the
premises.
(6) Only single-service articles shall be used.
(7) Consumer self-service is prohibited except for
condiments in individual packages or in pour-type
or squeeze-type containers.
(8) Equipment in the congregate nutrition site
which is not certified or classified for
sanitation by an ANSI-accredited certification
program which is in good repair and operating
properly may be used. At least a
2-compartment sink shall be provided. The
sink shall be of sufficient size to submerge,
wash, rinse, and sanitize utensils. At least 1
drainboard, table, or counter space shall be
provided for air-drying.
(9) Garbage can liners are required for all garbage
receptacles unless the site has receptacle
cleaning facilities as specified in Section 5-
501.18 of the Food Code as amended by Rule
.2655.
(10) Water used for mop or receptacle cleaning
shall not be disposed in the utensil sink.
Wastewater from mopping, receptacle
cleaning, and other cleaning operations shall
be disposed in a service sink or another
approved manner in accordance with 15A
NCAC 18A .1900 or 15A NCAC 02H .0200.
Authority G.S. 130A-248; S.L. 2011-394, Section 15(a).
15A NCAC 18A .2674 LIMITED FOOD
ESTABLISHMENTS
Limited food establishments shall comply with all the
requirements in Rules .2650-.2662 of this Section, except that
the following provisions apply in lieu of Rules .2654(2) and
.2659(a) and (b); Section 5-204.11(b) of the Food Code as
amended by Rule .2655, and Sections 8-201.11 and 8-201.12 of
the Food Code as amended by Rule .2658:
(1) The permit for a limited food establishment
shall be posted in a conspicuous place where it
can be readily seen by the public at all times.
Permits for limited food establishments shall
expire on December 31 of each year. A new
permit from the regulatory authority shall be
obtained before the limited food establishment
shall be allowed to operate each year.
Transitional permits shall not be issued.
(2) The permit application shall be submitted to
the local health department at least 30 days
prior to construction or commencing
operation. The permit application shall include
a proposal for review and approval which
includes a menu, plans, and specifications for
the proposed limited food establishment, and
location and dates of operation.
(3) Limited food establishments shall not prepare
any potentially hazardous food
(time/temperature control for safety food)
prior to the day of sale.
(4) Potentially hazardous food (time/temperature
control for safety food) which has been heated
at the limited food establishment and remains
at the end of the day shall not be served or
placed in refrigeration to be used another day.
(5) Food prepared in a private home may not be
used or offered for human consumption in a
limited food establishment.
(6) All meats, poultry, and fish shall be purchased
in a pre-portioned and ready-to-cook form.
(7) Equipment in the limited food establishment
which is not certified or classified for
sanitation by an ANSI-accredited certificate
program which is in good repair and operating
properly may be used. At least a
2-compartment sink shall be provided. The
sink shall be of sufficient size to submerge,
wash, rinse, and sanitize utensils and shall
have splashback protection. At least 1
drainboard, table, or counter space shall be
provided for air-drying.
(8) Only single-service articles shall be used.
(9) Consumer self-service is prohibited except for
condiments in individual packages or in pour-type
or squeeze-type containers.
(10) Limited food establishments may prepare food
in accordance with Rule .2669(b) of this
Section.
(11) Floors, walls, and ceilings of limited food
establishments shall meet the requirements of
this Section, except those limited food
establishments preparing food in accordance
with Rule .2669(b). Limited food
establishments shall use dustless methods of
floor cleaning and all, except emergency floor
cleaning, shall be done during those periods
when the least amount of food and drink is
exposed, such as after closing, or between
meals.
(12) All areas in which food is handled, prepared,
or in which utensils are washed, shall be
provided with artificial lighting that complies
with Section 6-202.11 of the Food Code as
amended by Rule .2656.
PROPOSED RULES
26:18 NORTH CAROLINA REGISTER MARCH 15, 2012
1464
(13) A handwashing sink shall be provided in food
service areas for use by employees only.
(14) Toilet facilities shall be provided for use by
employees. Public toilet facilities provided on
the grounds of the facility where the associated
amateur athletic event is taking place are
acceptable. Toilet facilities for the public are
not required.
Authority G.S. 130A-248; S.L. 2011-394, Section